                                                                           United States Court of Appeals
                                                                                    Fifth Circuit
                                                                                  F I L E D
                               REVISED OCTOBER 10, 2006
                                                                                  October 5, 2006
                       In the United States Court of Appeals
                               for the Fifth Circuit                          Charles R. Fulbruge III
                                                                                      Clerk

                                        No. 04-11332


JOHN EDWARD EASTER, also known as Stephen Easter,

              Plaintiff - Appellee,
v.

GAYLA POWELL,

              Defendant - Appellant.


                       Appeal from the United States District Court
                           for the Northern District of Texas
                                  No. 7:02-CV-280-R


Before HIGGINBOTHAM, DEMOSS, and OWEN, Circuit Judges.

PER CURIAM:

       John Edward Easter, a prison inmate acting pro se, brought a 42 U.S.C. § 1983 claim

against prison nurse Gayla Powell, alleging deliberate indifference to his serious medical

needs in violation of the Eighth Amendment. The only issue in this interlocutory appeal is

whether Powell is entitled to qualified immunity as a matter of law. We hold that Powell

was not entitled to summary judgment on her immunity defense because Easter alleged the

violation of a clearly established constitutional right and Powell failed to establish that her

conduct was objectively reasonable as a matter of law. Therefore, we affirm the district
court’s judgment and remand the case for further proceedings consistent with this opinion.

                                                     I

       Easter, a prison inmate who has a history of serious heart problems, was taken to the

prison infirmary for chest pain and vomiting. A prison doctor prescribed oxygen and

nitroglycerin, a medication used to prevent chest pain by relaxing the blood vessels to the

heart. The label on Easter’s nitroglycerin bottle included instructions to “dissolve 1 tablet

under [his] tongue every 5 minutes as–needed for chest pain; after 3 tablets or 15 minutes

call doctor if no relief has been obtained.” Approximately fifteen minutes after receiving

nitroglycerin, Easter’s chest pain ceased and he returned to his cell.

       Two days later, Easter went back to the prison infirmary, again complaining of severe

chest pain. At the infirmary, Easter informed Nurse Powell that he had been experiencing

severe chest pain for approximately twenty minutes. Powell took Easter’s blood pressure

and sent him to the prison pharmacy to have his nitroglycerin prescription refilled. Because

the pharmacy was closed, Easter returned to the infirmary and repeated his request that

Powell provide him with nitroglycerin. Powell accused Easter of being argumentative, stated

that his blood pressure was normal, and ordered him to leave. After reminding Powell that

he was there for chest pain and not blood pressure, Easter requested an electrocardiogram1

and nitroglycerin. Powell refused Easter’s requests and had security escort him to his cell.

After four hours of severe pain, Easter returned to the infirmary and was given nitroglycerin


       1
           An electrocardiogram is an electrical recording of the heart that is used to investigate heart
disease.

                                                    2
by a different medical professional. Easter alleges that by the time his pain ceased, blood

vessels in his left eye had burst, causing it to fill with blood.

       Easter sued Powell pursuant to 42 U.S.C. § 1983, alleging that Powell violated his

Eighth Amendment rights by denying him medical treatment and refusing to perform an

EKG. Powell moved for summary judgment, arguing that (1) she did not violate Easter’s

Eighth Amendment rights and (2) she was entitled to qualified immunity from Easter’s suit.

The district court granted Powell’s motion for summary judgment as to Easter’s claim that

Powell violated his Eighth Amendment rights by delaying medical treatment because Easter

did not allege that the delay resulted in substantial harm.2 The court concluded, however,

that Easter stated an Eighth Amendment claim for damages for the pain he allegedly suffered

during the several hours he was denied treatment and Powell failed to establish as a matter

of law that her actions in delaying treatment were objectively reasonable. The court

therefore denied Powell’s motion for summary judgment on that claim and her qualified

immunity defense.

       Powell has pursued this interlocutory appeal.




       2
         See Mendoza v. Lynaugh, 989 F.2d 191, 195 (5th Cir. 1993) (“[D]elay in medical care can
only constitute an Eighth Amendment violation if there has been deliberate indifference, which results
in substantial harm.”).

                                                  3
                                                 II

       A district court’s order denying qualified immunity is immediately appealable only

to the extent that it turns on an “issue of law.”3 A district court’s decision to deny qualified

immunity on a motion for summary judgment is “not appealable if [it is] based on a claim

regarding the sufficiency of the evidence.”4 Thus, we only have jurisdiction to determine

whether, viewing the facts in the light most favorable to Easter, Powell is entitled to qualified

immunity as a matter of law;5 we do not have jurisdiction to determine whether the evidence

is sufficient to support either party’s version of the facts.6 We review the denial of Powell’s

motion for summary judgment de novo.7

       “[G]overnment officials performing discretionary functions generally are shielded

from liability for civil damages insofar as their conduct does not violate clearly established

statutory or constitutional rights of which a reasonable person would have known.”8 When


       3
        Palmer v. Johnson, 193 F.3d 346, 350-51 (5th Cir. 1999).
       4
        Id.
       5
        See Behrens v. Pelletier, 516 U.S. 299, 313 (1996) (noting that a determination that the
defendant is or is not entitled to qualified immunity under a sufficiently supported set of facts is a
reviewable, abstract issue of law); Gobert v. Caldwell, No. 05-30820, 2006 WL 2474846, at *1 (5th
Cir., Aug. 29, 2006) (“This court ‘must accept the plaintiff’s version of the facts as true’ and may
review de novo only the purely legal question of whether ‘the district court erred in concluding as a
matter of law that officials are not entitled to qualified immunity on [that] given set of facts.’”).
       6
         Palmer, 193 F.3d at 351 (“[O]n this interlocutory appeal we do not review . . . the district
court’s assessment of what facts are established by or inferable from the evidence.”).
       7
        Gobert, 2006 WL 2474846 at *1.
       8
         Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); see also Hall v. Thomas, 190 F.3d 693, 696
(5th Cir. 1999) (recognizing that the administration of medical care to an inmate is a discretionary

                                                  4
assessing whether a defendant is entitled to qualified immunity, we engage in a bifurcated

analysis.9 First, we determine whether, under current constitutional standards, the plaintiff

has alleged a violation of a clearly established constitutional right.10 If so, we then decide

if the defendant’s conduct was objectively reasonable in light of the clearly established law

at the time of the incident.11 A government official is entitled to qualified immunity if either

(1) the plaintiff failed to state a constitutional claim or (2) the defendant’s conduct was

objectively reasonable in light of the clearly established law.12

       Easter alleges that Powell violated his Eighth Amendment right to be free from cruel

and unusual punishment. Although the Eighth Amendment “does not, by its precise words,

mandate a certain level of medical care for prisoners[,]”13 the Supreme Court has interpreted

it as imposing a duty on prison officials to “ensure that inmates receive adequate . . . medical

care.”14 A prison official violates the Eighth Amendment’s prohibition against cruel and


function).
       9
        Rankin v. Klevenhagen, 5 F.3d 103, 105 (5th Cir. 1993).
       10
          Id. at 105, 108 (“When evaluating whether a plaintiff stated a constitutional violation, we
look[] to currently applicable constitutional standards. However, ‘[t]he objective reasonableness of
an official’s conduct must be measured with reference to the law as it existed at the time of the
conduct in question.’” (internal citations omitted)).
       11
            Id. at 105.
       12
         Salas v. Carpenter, 980 F.2d 299, 310 (5th Cir. 1992) (“Even if an official’s conduct
violates a constitutional right, he is entitled to qualified immunity if the conduct was objectively
reasonable.”).
       13
            Stewart v. Murphy, 174 F.3d 530, 533 (5th Cir. 1999).
       14
            Farmer v. Brennan, 511 U.S. 825, 832 (1994).

                                                  5
unusual punishment when his conduct demonstrates deliberate indifference to a prisoner’s

serious medical needs, constituting an “unnecessary and wanton infliction of pain.”15 The

mere delay of medical care can also constitute an Eighth Amendment violation but only “if

there has been deliberate indifference [that] results in substantial harm.”16

       The “deliberate indifference” standard requires “a showing that the official was

subjectively aware of the risk [of serious harm to the inmate].”17 “[A] prison official cannot

be found liable under the Eighth Amendment . . . 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 be drawn that a substantial risk of serious harm exists, and he must

also draw the inference.”18 However, a prison official’s knowledge of a substantial risk of

harm may be inferred if the risk was obvious.19 For example,

       [I]f an Eighth Amendment plaintiff presents evidence showing that a
       substantial risk of inmate attacks was longstanding, pervasive, well-
       documented, or expressly noted by prison officials in the past, and the
       circumstances suggest that the defendant-official being sued had been exposed
       to information concerning the risk and thus must have known about it, then
       such evidence could be sufficient to permit a trier of fact to find that the
       defendant-official had actual knowledge of the risk.20

       15
            Wilson v. Seiter, 501 U.S. 294, 297 (1991) (quoting Estelle v. Gamble, 429 U.S. 97, 106
(1976)).
       16
            Mendoza v. Lynaugh, 989 F.2d 191, 195 (5th Cir. 1993).
       17
            Farmer, 511 U.S. at 829.
       18
            Id. at 837.
       19
            Id. at 842-43 (internal quotations omitted).
       20
            Id.

                                                    6
       Taking Easter’s allegations as true, as we must,21 Powell knew that Easter (1) had a

heart condition, (2) was experiencing severe chest pain, and (3) did not have his prescribed

heart medication. The record evidence indicates that Easter’s prior heart problems were

well-documented in his medical chart, which indicated that he had heart disease and had

suffered a heart attack, and that Powell had been exposed to the information. Therefore, it

can be inferred from the circumstances that Powell was subjectively aware of a substantial

risk of harm to Easter’s health.

       Although Powell was aware of that substantial risk, she did nothing more than direct

Easter to the pharmacy to obtain a refill of his nitroglycerin prescription. When Powell

learned that the pharmacy was closed, she sent Easter back to his cell without providing him

any treatment. There is no indication in the record that Powell did not have access to

nitroglycerin or that she was unable to offer Easter any other treatment options. Accepting

Easter’s allegations as true, Powell was aware of a serious risk to Easter’s health, yet turned

a deaf ear to his request for medical treatment.

       Powell argues that Easter alleges only a disagreement about the nature of the

treatment provided, not an actionable deliberate indifference claim.               Although mere

disagreement with the treatment provided is not sufficient to state a claim for deliberate

indifference,22 Easter is not alleging mere disagreement with the course of treatment Powell

       21
          Salas v. Carpenter, 980 F.2d 299, 304 (5th Cir. 1992) (“Our review [of whether a valid
constitutional claim has been made] is plenary accepting the facts in the light most favorable to the
nonmoving party.”).
       22
            Stewart v. Murphy, 174 F.3d 530, 537 (5th Cir. 1999).

                                                  7
provided to him. Rather, Easter alleges that Powell failed to follow a prescribed course of

treatment that called for the administration of nitroglycerin when he experienced chest pain.23

A prison inmate can demonstrate an Eighth Amendment violation by showing that a prison

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.’”24 According to Easter’s allegations, Powell refused to provide any

treatment to, and ignored the complaints of, a patient suffering from severe chest pain that

she knew had a history of cardiac problems. Powell’s alleged conduct meets the “deliberate

indifference” threshold.25

       “[D]elay in medical care can only constitute an Eighth Amendment violation if there


       23
         See Estelle v. Gamble, 429 U.S. 97, 104-05 (1976) (noting that deliberate indifference can
be “manifested by prison doctors in their response to the prisoner’s needs or by prison guards in
intentionally denying or delaying access to medical care or intentionally interfering with the treatment
once prescribed”).
       24
            Domino v. Tex. Dep’t of Criminal Justice, 239 F.3d 752, 756 (5th Cir. 2001).
       25
          See Austin v. Johnson, 328 F.3d 204, 210 (5th Cir. 2003) (holding that a defendant’s failure
to call an ambulance for almost two hours while plaintiff lay unconscious and vomiting rises to the
level of deliberate indifference); Harris v. Hegmann, 198 F.3d 153, 159-60 (5th Cir. 1999)
(concluding that ignoring an inmate’s repeated requests for medical treatment and complaints of
excruciating pain satisfied the deliberate indifference standard); see also Sealock v. Colorado, 218
F.3d 1205, 1210 (10th Cir. 2000) (concluding that a prison official’s refusal to drive an inmate to the
hospital when he had been informed that the inmate might be having a heart attack and witnessed the
inmate displaying symptoms consistent with a heart attack met the deliberate indifference standard);
Hudson v. McHugh, 148 F.3d 859, 863-64 (7th Cir. 1998) (stating that “an inmate with a potentially
serious problem repeatedly requesting medical aid, receiving none, and then suffering a serious injury”
is “the prototypical case of deliberate indifference”); Steele v. Choi, 82 F.3d 175, 179 (7th Cir. 1996)
(“If [the inmate]’s chart had page after page documenting a heart condition, and he came in with a
set of symptoms consistent with a heart attack, it is possible that the Farmer standard might be
met.”).

                                                   8
has been deliberate indifference [that] results in substantial harm.”26 The district court

determined that Easter made no claim of any lasting complications resulting from the delay

in receiving nitroglycerin, and thus failed to show an Eighth Amendment violation as to the

delayed treatment. Even if Easter failed to state an Eighth Amendment violation with regard

to the delay in medical treatment, which we need not decide for purposes of the qualified

immunity issue on appeal, Easter clearly stated an Eighth Amendment violation with regard

to the severe chest pain he suffered during the period of time Powell refused to treat him.

       When a government official violates a constitutional right, the official is nevertheless

entitled to qualified immunity if his or her conduct is objectively reasonable in light of

clearly established law.27 A law is “clearly established” if it is “sufficiently clear that a

reasonable official would understand that what he [or she] is doing violates that right.”28

However, “[t]his is not to say that an official action is protected by qualified immunity unless

the very action in question has previously been held unlawful; but it is to say that in the light

of pre-existing law the unlawfulness must be apparent.”29 “The law can be clearly

established despite notable factual distinctions between the precedents relied on and the

cases then before the Court, so long as the prior decisions gave reasonable warning that the




       26
            Mendoza v. Lynaugh, 989 F.2d 191, 193 (5th Cir. 1993) (emphasis added).
       27
            Salas v. Carpenter, 980 F.2d 299, 310 (5th Cir. 1992).
       28
            Anderson v. Creighton, 483 U.S. 635, 640 (1987).
       29
            Id. (internal citations omitted).

                                                  9
conduct then at issue violated constitutional rights.”30

       At the time Powell denied Easter treatment, the law was clearly established that a

prison inmate could demonstrate an Eighth Amendment violation by showing that a prison

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.’”31 The summary judgment record reflects that Powell offered no

treatment options to a patient with a history of cardiac problems who was experiencing

severe chest pains. This is some evidence that no reasonable official could have believed

such conduct was lawful in light of clearly established law.32 Because there is evidence that

Powell’s conduct was not objectively reasonable in light of clearly established law, and

Powell adduced no competent summary judgment evidence to show otherwise, Powell is not

entitled to summary judgment based on qualified immunity.

                                              *****

       The district court’s judgment is AFFIRMED and the cause is REMANDED for further

proceedings consistent with this opinion. Easter’s motion to dismiss Powell’s appeal as


       30
          Kinney v. Weaver, 367 F.3d 337, 350 (5th Cir. 2004) (en banc) (quoting Hope v. Pelzer,
536 U.S. 730, 740 (2002)) (internal quotation marks omitted); see also Austin, 328 F.3d at 210
(“Defendants’ contention that no case has specificallyproscribed the withholding of medical treatment
for boot camp attendees reads the right too narrowly; officers need only have ‘fair warning’ that their
conduct is unlawful.”).
       31
            Domino, 239 F.3d at 756.
       32
         See Austin, 328 F.3d at 207 (“An official’s conduct is . . . objectively reasonable unless ‘all
reasonable officials would have realized the particular challenged conduct violated the constitutional
provisions sued on.’”).

                                                  10
frivolous is DENIED.




                       11
