     Case: 13-10139      Document: 00512539463         Page: 1    Date Filed: 02/20/2014




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


                                      No. 13-10139                                 FILED
                                                                           February 20, 2014
                                                                              Lyle W. Cayce
SHAWN A. STEWART,                                                                  Clerk

                                                 Plaintiff-Appellant,
v.

JOAQUIN GUZMAN, Lieutenant; PATRICK MARTIN, Sergeant of Security;
CORY G. CLINKENBEARD, Security Officer; JASON COMBS, Security
Officer; LEE WILSON, Security Officer; MOLLY S. CEDILLO, Security
Officer; JOHNNY G. BROWN, Security Officer; A. WESTER; BRANDON M.
SARKISIAN,

                                                 Defendants-Appellees.




                   Appeal from the United States District Court
                        for the Northern District of Texas
                           USDC No. 1:11-cv-00036-BL


Before STEWART, Chief Judge, and GARZA and SOUTHWICK, Circuit
Judges.
PER CURIAM:*
       Plaintiff-Appellant Shawn A. Stewart appeals the district court’s grant
of summary judgment in favor of Defendants-Appellees (“Appellees”) based on
their defense of qualified immunity. Stewart filed suit in the district court


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                 No. 13-10139
pursuant to 42 U.S.C. § 1983, alleging, inter alia, that Appellees were
deliberately indifferent to his safety and health. We REVERSE and REMAND
for further proceedings.
                I.    FACTUAL & PROCEDURAL HISTORY
   A. Facts
      Stewart is incarcerated at French M. Robertson Unit in Abilene, Texas.
This appeal centers on five days during Stewart’s imprisonment—July 8, 2009;
September 8, 2009; October 22, 2009; November 23, 2009; and January 4, 2010.
On each of the above-listed dates, Stewart suffered an asthma attack, which
he contends was either caused or exacerbated by Appellees.          The parties
provide vastly divergent accounts of what transpired each day.
         1. July 8, 2009
      Stewart alleges that Officers Joaquin Guzman, Patrick Martin, Cory G.
Clinkenbeard, and Jason M. Combs observed him have an asthma attack in
the 4-Building, which is where Stewart was housed. However, rather than
transport him to the prison infirmary for assistance, Stewart contends that
they watched him lying on the floor. Stewart argues that, because of this delay,
he was forced to suffer “wanton and unnecessary pain” longer than he would
have had Appellees simply made an Incident Command System (“ICS”)
emergency call. Stewart further asserts that the officers were aware that
Stewart had recently been hospitalized due to a previous asthma attack.
      Another inmate, Harvey Leroy Sossamon, III, corroborated Stewart’s
version of the incident. Sossamon informed Combs and Clinkenbeard that
Stewart had been hospitalized recently due to an asthma attack and asked
whether he could transport Stewart to the infirmary for treatment. Not only
did Combs and Clinkenbeard fail to respond to Sossamon’s warning concerning
Stewart’s medical condition, but they also refused to permit Sossamon to
transport Stewart to the infirmary. Guzman and Martin then entered the
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                                      No. 13-10139
building and observed the situation but failed to assist Stewart. At this point,
Stewart contends that he was lying on the flooring gasping for air. In fact,
Stewart alleges that Martin asked him if something was wrong. 1 Officer
Charles Wright then entered the building. Upon Wright’s arrival, Sossamon
informed Wright of Stewart’s past hospitalization and requested that he secure
medical treatment for Stewart. Subsequently, Wright made a phone call, left,
and returned with a wheelchair. Wright was accompanied by Sergeants Susan
Sabin and Allen Merchant. Wright, Sabin, and Merchant transported Stewart
to the infirmary. Stewart remained in the infirmary for two days. Several
weeks later, Stewart filed a formal complaint concerning Guzman, Martin,
Clinkenbeard, and Combs’s response to his request for medical treatment.
      Combs responds that he contacted the prison medical staff as soon as he
was informed that Stewart needed medical attention and was told to send
Stewart to the infirmary. Because the 4-Building was on lockdown, Combs
alleges that Stewart had to be escorted to the infirmary. However, Combs was
unable to escort Stewart because he was assigned as the security desk officer
and prison policy mandated that he remain at the desk. Accordingly, Combs
states that he called Sabin to request an escort for Stewart.                  Sabin was
otherwise occupied and, so, could not immediately transport Stewart. While
Combs waited for Sabin, Wright arrived, and Combs asked him to escort
Stewart. At this point, Stewart was unable to walk and Wright had to get a
wheelchair to transport Stewart. Due to the length of time that passed before
Wright returned with a wheelchair, Combs called the infirmary again to
request a wheelchair. Combs contends that although several officers offered
to assist him, he did not accept their offers because he was told that a
wheelchair was forthcoming.            Combs proceeded to initiate an ICS for


      1   Sossamon also stated that Martin laughed at Stewart’s predicament.
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                                    No. 13-10139
emergency assistance. Stewart was then escorted to the infirmary by Sabin,
Merchant, and Wright. According to Combs, Sossamon’s offer to transport
Stewart was refused for safety concerns and also because another officer was
bringing a wheelchair.
      Clinkinbeard and Guzman’s accounts of the incident also differ from
Stewart’s. Clinkinbeard contends that Stewart was sitting on the floor when
he arrived at the 4-Building. Moreover, Clinkinbeard states that he would
have escorted Stewart to the infirmary but was unable to due to Stewart’s
inability to walk. Clinkinbeard also maintains that he was told that someone
was coming with a wheelchair. Guzman simply asserted that he did not know
of Stewart’s asthma attack and Stewart failed to alert him to his medical
condition. Similarly, Martin states that he was unaware of Stewart’s medical
emergency. Indeed, Martin contends that he never saw Stewart. 2 Rather,
Martin stated that he was performing cell shakedowns in the D-Wing and E-
Wing whereas Stewart was assigned to the F-Wing.
          2. September 8, 2009
      In addition, Stewart alleges that Officer Lee Wilson prevented him from
going to the infirmary to receive an oxygen treatment, which would have
forestalled another asthma attack. Stewart contends that not only did he press
the call button and bang on a window to get Wilson’s attention but other
inmates also began knocking on windows to help Stewart. Instead of assisting
Stewart, Stewart claims that Wilson “flip[ped] the bird at” him. According to
Stewart, approximately ten minutes passed before Wilson allowed him to
leave. Because of this delay, Stewart contends that he suffered an asthma
attack and was transferred to Hendricks Hospital.             Stewart again filed a



      2 In an email concerning Stewart’s complaint, Martin stated that Stewart reported
that Wright did not do anything.
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                                    No. 13-10139
complaint regarding this incident.             Other inmates—Christopher Flores,
Michael Ralston, and Anthony Ramsey—corroborated Stewart’s account. They
also stated that, as time progressed, it became apparent that Stewart was
having difficulty breathing.
      Wilson, however, claims that “he did not flip [] Stewart off and ignore
him.” Wilson contends that he did not hear any banging on the window. At
the time in question, Wilson claims that he was observing another officer pass
out mail in another section of the 4-Building to ensure that the officer’s safety
was not jeopardized. Wilson states that he heard a call signal from Stewart’s
section but only observed a black inmate who did not seem to be suffering from
any medical condition. 3 Thus, Wilson returned to observe the officer passing
out mail, reasoning that the officer’s safety was a higher priority than the
unidentified inmate. 4 Wilson stated that he later heard banging, saw that
Stewart was in need of assistance, and opened the door for Stewart. While
Wilson admits that he erred, he contends that he was merely negligent. 5
Officer Johnny Snyder reported that he observed Stewart collapse and then
initiated an ICS.
          3. October 22, 2009
      Similarly, Stewart alleged that Officer Molly S. Cedillo refused to permit
him to go to the infirmary for an oxygen treatment. Stewart contends that,
consequently, an ICS was implemented and he had to receive emergency
medical treatment. Yet again, Stewart filed a grievance.
      In his grievance complaint, Stewart stated that he attempted to get
Cedillo’s attention by knocking on the glass walls. Stewart then proceeded to


      3  Throughout the investigation process, Wilson has given conflicting evidence with
regards to whether he heard the call signal.
      4 Wilson contends that he would have immediately assisted Stewart had he recognized

him.
      5 Wilson is no longer employed by the Texas Department of Criminal Justice.

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                                      No. 13-10139
press the emergency call button because he was beginning to suffer from an
asthma attack; however, he contends Cedillo responded that he should stop
pushing the emergency button. He alleges that he then began to suffer from
an asthma attack. Stewart claims that Cedillo still failed to assist him. Other
inmates attested that Cedillo ignored Stewart’s attempts to request her
assistance. These inmates also noted that it was apparent that Stewart was
having an asthma attack. Several of Stewart’s fellow inmates therefore began
to knock on their doors in an attempt to get Stewart help. Corey D. Woodberry,
another inmate, stated that he used the intercom to inform Cedillo of Stewart’s
need to go to the infirmary. She allegedly responded that Stewart should not
have pressed the call button and could wait until she finished removing the
inmates in another section.          Officer Tschope became aware of Stewart’s
medical condition and an ICS was initiated. 6 Stewart was then transported to
the infirmary for emergency treatment. Woodberry contends that Stewart was
passed out when Stewart was finally permitted to go to the infirmary.
       In the investigation into Stewart’s grievance, Appellees provided an
account of a video tape capturing the incident. According to Appellees, Stewart
does not appear distressed and did not attempt to get Officer Tschope’s
attention, although he could have based on the proximity between the two.
Tschope reported that, while he was in the F-wing, Stewart never requested
his help. Rather, it was not until he was in another section that Tschope heard
knocking and so walked over to Stewart’s section to investigate. It was at this
time that Stewart showed him his medical pass and Tschope had Cedillo open
the door for Stewart.




       6 Woodberry also claimed that, at first, Tschope instructed Cedillo to permit Stewart
to leave, but she refused to do so.
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                                No. 13-10139
      Cedillo also refutes Stewart’s account of the incident.     According to
Cedillo, she did not ignore Stewart’s requests for assistance. She maintains
that Stewart never requested her assistance and did not appear to be in
medical distress.    Rather, another prisoner notified her that Stewart was
suffering from an asthma attack. Cedillo does acknowledge that she was aware
that Stewart was prone to have asthma attacks.
         4. November 23, 2009
      Stewart also alleged in his complaint that Officer Johnny G. Brown
barred Stewart from going to the infirmary for an oxygen treatment. Because
of this delay, Stewart was again hospitalized. Like the previous instances,
Stewart filed a written complaint, arguing that Brown knew that the failure to
permit him to get the treatment would result in an asthma attack. Stewart
alleged that Brown had repeatedly ignored his requests to go to the infirmary
for treatment on previous occasions. Stewart claims that he repeatedly pressed
the call button and waved his medical pass at Brown to no avail. Instead,
Brown mocked him, despite the onset of Stewart’s asthma attack. Stewart also
maintains that he signaled to Brown that he was choking.
      Brown, however, maintained that he in no way inhibited Stewart from
receiving his treatment.    When Stewart requested to go to the infirmary,
Brown contends that a number of inmates were in the area because lunch was
being served. Brown states that as soon as he was able to remove the inmates
from the area, he allowed Stewart to leave. Throughout this time period,
Brown claims that Stewart did not appear to be in distress.




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                                    No. 13-10139
          5. January 4, 2010
      In addition, Stewart alleged that Officers A. Wester and B. Sarkisian
ignored him when he had an asthma attack in his cell. 7 Moreover, Stewart
claims that none of the officers were in the vicinity of his cell so as to provide
him assistance.      Stewart contends that he flashed the lights in his cell
repeatedly to get Wester and Sarkisian’s attention. Ortiz claimed that Stewart
also knocked on the door to alert Sarkisian and then asked Ortiz for his help
in contacting Sarkisian. After knocking on the door for approximately six to
seven minutes, Sarkisian responded to Stewart and Ortiz. Ortiz contends that
once he told Sarkisian that Stewart was having difficulty breathing, Sarkisian
simply turned off the speaker to the cell. At this point, additional inmates
began knocking on their doors to get help for Stewart. According to Ortiz,
Wester then came and called for assistance. During this process, Stewart
alleges that he suffered an intense asthma attack, resulting in a great deal of
pain and lack of sufficient oxygen. Due to the delay in receiving treatment,
Stewart argues that Officer Wendy Doan and two others had to place him on a
stretcher to receive treatment. Stewart was transferred to Hendricks Hospital,
and he later filed a grievance regarding this incident.
      In response, Wester claims that as soon as he observed the lights flashing
in Stewart’s cell, he sent officers to investigate and opened the cell when they
discovered Stewart’s condition. Sarkisian confirms Wester’s version of the
incident. According to Sarkisian, Wester sent him to check on Stewart. When
he saw that Stewart was having an asthma attack, Sarkisian claims that he
removed Stewart from his cell.



      7  Stewart’s cellmate, Aaron Ortiz, stated that Stewart had warned Wester of his
medical condition before the asthma attack occurred. We note that, unlike the affidavits
provided by the other inmates, Ortiz’s affidavit does not completely align with Stewart’s
version of what transpired.
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                                       No. 13-10139
   B. Procedural History
       In February 2011, Stewart filed suit against Appellees as well as a
number of other prison employees, alleging failure to protect, deliberate
indifference to his medical health and safety, failure to train, and conspiracy.
The district court dismissed the claims against the other prison employees,
leaving only Stewart’s claim of deliberate indifference against Appellees
remaining. 8 Appellees then moved for summary judgment, arguing, inter alia,
that they were entitled to qualified immunity. The district court granted
summary judgment in favor of Appellees, dismissing Stewart’s suit.                       The
district court concluded that Stewart failed to provide sufficient evidence to
rebut Appellees’ claims of qualified immunity.               Stewart filed a motion to
reconsider, which the district court denied, and he timely appealed.
                                    II.    DISCUSSION
       Stewart raises several issues on appeal. First, he argues that the district
court erred when it granted Appellees’ motion for summary judgment because,
contrary to the district court’s conclusion, he did provide competent summary
judgment evidence rebutting Appellees’ qualified immunity defense. Stewart
further contends that the district court engaged in credibility determinations
which were improper at this stage of the litigation. Second, he argues that the
district court abused its discretion by not permitting him to depose some of his
witnesses and denying his motion to conduct additional discovery. Appellees
respond that Stewart has only demonstrated, at most, gross negligence, and
that the district court did not abuse its discretion with its discovery rulings.




       8 These proceedings were conducted by the magistrate judge with the consent of the
parties. For ease of reference, however, we will refer to the magistrate judge as the district
court.
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                                  No. 13-10139
   A. Standard of Review
      We review the district court’s grant of summary judgment de novo,
applying the same standard used by the district court. Haverda v. Hays Cnty.,
723 F.3d 586, 591 (5th Cir. 2013). Summary judgment is warranted “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). We
draw all reasonable inferences in favor of Stewart, the nonmoving party.
Haverda, 723 F.3d at 591. “A genuine dispute as to a material fact exists when,
after considering the pleadings, depositions, answers to interrogatories,
admissions on file, and affidavits, a court determines that the evidence is such
that a reasonable jury could return a verdict for the party opposing the
motion.” Id. We neither engage in credibility determinations nor weigh the
evidence. Vaughn v. Woodforest Bank, 665 F.3d 632, 635 (5th Cir. 2011).
   B. Qualified Immunity
      When a government official asserts a qualified immunity defense, the
plaintiff carries “the burden of negating qualified immunity.”           Brown v.
Callahan, 623 F.3d 249, 253 (5th Cir. 2010). To determine whether Appellees
are entitled to qualified immunity, we must ask two questions: “(1) whether
the plaintiff has alleged a violation of a clearly established constitutional right;
and (2) if so, whether the defendant’s conduct was objectively unreasonable in
the light of the clearly established law at the time of the incident.” Stidham v.
Tex. Comm’n on Private Sec., 418 F.3d 486, 490 (5th Cir. 2005) (internal
quotation marks and citation omitted). “If we . . . answer either of the above
questions in the negative, then the defendant is entitled to qualified
immunity.” Id.
      The Eighth Amendment is violated when prison guards are deliberately
indifferent to the serious medical needs of prisoners. Harris v. Hegmann, 198
F.3d 153, 159 (5th 1999) (stating that prison guards are deliberately indifferent
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                                 No. 13-10139
when they “intentionally deny[] or delay[] access to medical care or
intentionally interfer[e] with the treatment once prescribed.” (citation
omitted)); see also Williams v. Certain Individual Emp. of the Tex. Dep’t of
Criminal Justice-Institutional Div. at the Jester III Unit, 480 F. App’x 251, 256
(5th Cir. 2010) (unpublished) (per curiam). To prove deliberate indifference,
Stewart must show that Appellees were aware of “and disregard[ed] an
excessive risk to [his] health or safety.” Easter v. Powell, 467 F.3d 459, 463
(5th Cir. 2006) (internal quotation marks and citation omitted). Thus, “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.” Id. (internal quotation marks and citation omitted). If the risk is
obvious, however, we may infer knowledge. Id. “Deliberate indifference is an
extremely high standard to meet.” Horn v. Vaughan, 469 F. App’x 360, 363
(5th Cir. 2012) (per curiam) (unpublished) (citation and internal quotation
marks omitted).
      A delay in providing medical care violates the Eighth Amendment only
when “there has been deliberate indifference [that] results in substantial
harm.” Easter, 467 F.3d at 464 (alteration in original) (emphasis, citation, and
internal quotation marks omitted). A medical need is serious if it “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.” Lewis v. Evans, 440
F. App’x 263, 264 (5th Cir. 2011) (per curiam) (unpublished) (internal
quotation marks and citation omitted). Stewart must prove “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. at 265 (citation and
internal quotation marks omitted).         However, gross negligence does not
constitute deliberate indifference. Id.
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                                    No. 13-10139
      A government official violates clearly established law “if it is sufficiently
clear that a reasonable official would understand that what he [or she] is doing
violates that right.” Easter, 467 F.3d at 465 (alteration in original) (internal
quotation marks and citation omitted). The specific act engaged in by the
official need not have been held unlawful. Id. Rather, “prior [cases must give]
reasonable warning that the conduct then at issue violated constitutional
rights.” Id. (citation and internal quotation marks omitted).
      As an initial matter, we note that the district court erroneously found
the unsworn affidavits Stewart proffered as well as the factual allegations in
Stewart’s complaint to be inadequate summary judgment evidence. 9 While
unsworn affidavits are usually insufficient to raise a genuine issue of material
fact, Ion v. Chevron USA, Inc., 731 F.3d 379, 382 n.2 (5th Cir. 2013), an
“unsworn declaration . . . in writing of [a] person which is subscribed by him,
as true under penalty of perjury and dated” may substitute for a sworn
declaration. 28 U.S.C. § 1746. Stewart attached a signed declaration to his
complaint, stating that, “under the penalty of perjury,” the facts alleged in his
complaint were “true and correct.”          Moreover, Stewart relied on his two
unsworn declarations and multiple unsworn affidavits from fellow inmates,
which contained declarations that they were “true under penalty of perjury[]
and dated.” See 28 U.S.C. § 1746; see also Ion, 731 F.3d at 382 n.2. Therefore,
we will consider the facts Stewart alleges in his verified complaint, his two
unsworn declarations, as well as the unsworn affidavits when determining
whether he raised a genuine issue of material fact. See Hart v. Hairston, 343
F.3d 762, 765 (5th Cir. 2003) (“On summary judgment, factual allegations set




      9 Notably, Appellees do not attempt to justify the district court’s conclusion that
Stewart’s summary judgment evidence was incompetent.
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                                  No. 13-10139
forth in a verified complaint may be treated the same as when they are
contained in an affidavit.”).
      Viewing the evidence in the light most favorable to Stewart, see Haverda,
723 F.3d at 591, it is apparent that summary judgment is inappropriate at this
time. The parties present conflicting accounts of what transpired between
Stewart and Appellees, thereby rendering any grant of summary judgment
improper. See Fed. R. Civ. P. 56(a). Whereas Stewart’s account of the dates at
issue depicts repeated intentional disregard for his health, Appellees’ version
suggests that the officers merely followed prison protocol and any mistakes
were inadvertent.
      An issue of material fact exists in regards to whether Appellees were
deliberately indifferent to Stewart’s health and safety.       There is evidence
indicating that Appellees repeatedly delayed providing Stewart with medical
treatment, although they were aware that he frequently suffered from asthma
attacks. See Williams, 480 F. App’x at 256 (“A prison guard is deliberately
indifferent if he intentionally denies or delays access to medical care.” (internal
quotation marks omitted) (quoting Walker v. Butler, 967 F.2d 176, 178 (5th Cir.
1992))). Moreover, the parties agree that Stewart’s medical condition was
known by the prison guards. Our review of the summary judgment evidence
indicates that Appellees also intentionally disregarded the established
treatment plan for Stewart. See Chapman v. Johnson, 339 F. App’x 446, 448
(5th Cir. 2009) (per curiam) (unpublished) (stating that a defendant is not
entitled to summary judgment based on qualified immunity when the
defendant knew of prisoner’s injury and treatment protocol but failed to follow
it); see also Easter, 467 F.3d at 465 (holding that summary judgment was
improper on qualified immunity grounds when defendant was aware of
prisoner’s need for medical treatment but failed to provide it). Accordingly, the


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                                     No. 13-10139
district court erred when it granted Appellees summary judgment based on
qualified immunity.
                                  III.   CONCLUSION
       For the foregoing reasons, we REVERSE the district court’s grant of
summary judgment to Appellees on their qualified immunity defense, and we
REMAND for further proceedings consistent with this opinion. 10




       10Because we reverse the district court’s grant of summary judgment to Appellees, we
need not address the other issue raised by Stewart on appeal regarding the district court’s
discovery rulings and, thus, decline to do so.
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