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

                                                                            FILED
                                                                         January 15, 2009

                                       No. 07-31189                   Charles R. Fulbruge III
                                                                              Clerk

SUZANNE BENNETT, Individually and as Representative of the Estate of
real party in interest Sharon Russell, real party in interest Ariane Ray, real
party in interest Paris Ray, real party in interest Tia Ray,

                                                  Plaintiff - Appellant
v.

THE STATE OF LOUISIANA THROUGH THE DEPARTMENT OF PUBLIC
SAFETY AND CORRECTIONS; WARDEN JOHNNIE JONES; UNKNOWN
CHRISTMAS, Sergeant; UNKNOWN JOHNSON, Sergeant; UNKNOWN
SPURLOCK, Nurse; MICHAEL HEGMANN, Dr.; ABC INSURANCE
COMPANY

                                                  Defendants - Appellees



                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                             USDC No. 3:06-CV-195


Before DAVIS, STEWART, and DENNIS, Circuit Judges.
PER CURIAM:*
       This case involves a § 1983 suit by Suzanne Bennett, individually and as
representative of the estate of Sharon Russell, Ariane Ray, Paris Ray, and Tia
Ray (jointly “Bennett”). Russell began serving a six-year sentence for a non-


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                  No. 07-31189

violent offense at the Louisiana Correctional Institute for Women (“LCIW”) on
December 14, 2004. Russell made repeated requests for medical care after
entering LCIW, which Bennett asserts were not properly addressed. Russell
died in prison custody approximately five months later at age thirty-seven.
Bennett sued the State of Louisiana through the Department of Public Safety
and Corrections, Warden Johnnie Jones, Sgt. Christmas, Sgt. Johnson, Nurse
Spurlock, Dr. Michael Hegman, and ABC insurance Company (jointly
“Appellees”) for compensatory and punitive damages as well as declaratory and
injunctive relief, alleging they acted with deliberate indifference to Russell’s
serious medical needs during her five months at LCIW, subjecting her to cruel
and unusual punishment in violation of the Eighth Amendment. The Appellees
brought a motion for summary judgment, which the district court granted. For
reasons discussed below, we AFFIRM.
           I. FACTUAL AND PROCEDURAL BACKGROUND
      Russell was sentenced to serve six years for a non-violent criminal offense.
On December 14, 2004, Russell was incarcerated in the LCIW, and initial intake
lab work was performed on her. According to Bennett’s medical expert, it is
customary in Louisiana to perform initial intake lab work for any inmate
admitted to a correctional institute when a history of medical problems is
apparent and known to the correctional facility. Russell’s blood work evidenced
that her hemoglobin, hematocrit, mean corpuscular volume (MCV), and mean
corpuscular hemoglobin (MCH) were all at the “low end” of a normal range. In
addition, Russell’s urine analysis tested positive for white blood cells, red blood
cells, an occult blood 3+, protein 3+, and a trace of Ketones. A normal urine
analysis test result would indicate negative for these tests.
      On December 17, 2004, a psychological screen was conducted on Russell.
On December 21, 2004, a physical examination was conducted by Dr.
Nowakowski, and Russell was released to the LCIW compound on a diabetic diet


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with instructions to lift nothing greater than twenty-five pounds. On December
30, 2004, Russell completed a request for medical treatment form and
complained of back pain, leg pain, asthma, and bronchitis. On January 13, 2005,
Russell refused to accept a prescription of Remeron, a medication used to treat
depression. On January 18, 2005, Russell completed another request for medical
treatment form, and complained of leg pain, hip pain, and asthma. The record
indicates that Russell failed to appear for her scheduled appointment on the
same day.
      On January 28, 2005, Russell sent a letter to her sister, Bennett, stating
that the LCIW would not allow her to see a doctor because she did not have a life
threatening condition. On January 31, 2005, Russell sent a letter to another
relative stating that she feared for her life and requested help to get transferred
from LCIW to another facility.
      On February 3, 2005, Russell complained of leg, hip, right hand, and right
breast pain. She was placed on the Medical Doctor (“M.D.”) List, so that she
could be seen by a doctor. On February 17, 2005, she again complained of these
pains, as well as an inability to hold food down. On February 24, 2005, Russell
was examined by Nurse Practitioner P. Ross. She complained of shortness of
breath, asthma, and constipation. Russell was diagnosed with pain in her back
and left leg, left posterior cervical node enlargement, and chronic constipation.
An order was written to take Russell’s blood pressure three times per week, and
her prescriptions for Flexeril and Naproxen were continued. Magnesium Citrate
was ordered in addition to the administration of Metamucil to treat Russell’s
constipation. She was also referred to Dr. Nowakowski. Russell failed to report
for her blood pressure check on March 4, 2005.
      On March 7, 2005, Russell complained of vomiting, irregular breathing,
and a headache. She was referred to Dr. Nowakowski for additional treatment,
who diagnosed her with flu-like symptoms. Ms. Russell was placed on bed


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rest/no duty and given Phenergan for nausea and Tylenol. On March 14, 2005,
Russell advised that she still was not feeling well, and reported a dry cough,
body aches, and cold and hot flashes. She was currently taking Bactrim and
Tylenol. A complete blood count (“CBC”) was scheduled for March 15, 2005, and
Russell was to follow up with Dr. Nowakowski.
      On March 17, 2005, the nursing staff at the infirmary at LCIW conducted
laboratory tests which showed drops in Russell’s hemoglobin and hematocrit
levels since her admission to LCIW on December 14, 2004. The levels were
below normal, and included below normal red blood count, MCV level, MCH
level, and various other results outside the “normal” range.
      On March 24, 2005, Russell was diagnosed with menorrhagia and referred
to an obstetrician/gynecologist for evaluation. An order was also written to
check Russell’s stools for blood. Dr. Nawakowski examined Russell on this date,
and ordered further tests.
      On March 28, 2005, Russell reported to the infirmary with complaints of
continued vomiting, but after fifteen minutes of observation showed no signs of
vomiting.   The next day she experienced menorrhagia and a gynecologist
appointment was scheduled for April 12, 2005.
      On April 4, 2005, Russell complained of vomiting and reported a fall from
a ladder on her bed. After examination by Nurse Practitioner Gady, she was
instructed to follow-up with the infirmary if she did not improve. On April 7,
2005, Russell reported with nausea, vomiting, weight loss, and anemia. Russell
was diagnosed with Gastroesophageal Reflux Disease (GERD), an ulcer, and
epigastric tenderness. Russell was placed on Prilosec and Zantac for these
conditions.       The    physician     requested      a   referral    for   an
esophagogastroduodenoscopy, and Russell was removed from duty for one week.
The next day Russell refused medical treatment indicating that she felt “okay.”



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      On April 14, 2005, Russell presented with complaints of nausea, weakness,
and anemia. On April 15, 2005, a CBC test revealed low hemoglobin and
hematocrit levels. On April 19, 2005, Russell was treated by Dr. Nowakowski
who referred her to Earl K. Long Hospital (“EKL”). The initial admission notes
from EKL indicated that Russell lost fifty pounds over the past four months. A
doctor at EKL diagnosed Russell with pancreatitis, obstructive jaundice, anemia,
and acute renal failure. On April 21st or 22nd, 2005, Russell was diagnosed
with systematic inflammatory response.
      Russell died at 5:00 a.m. on April 23, 2005. Her death certificate states
the cause of death as peritonitis and pancreatitis.
      On March 13, 2006, Bennett filed a complaint in the Middle District of
Louisiana against the Appellees. The complaint alleged that when Russell was
in the custody of LWIC, the Appellees, in both their individual and official
capacities, showed deliberate indifference to Russell’s serious medical needs and
subjected Russell to cruel and unusual punishment in violation of the Eighth
and Fourteenth Amendments. Bennett sought compensatory damages, punitive
damages, and declaratory and injunctive relief.       The Appellees moved for
summary judgment arguing that (1) the Appellees were entitled to Eleventh
Amendment immunity in their official capacities; (2) the Appellees were entitled
to the protection of qualified immunity in their individual capacities; (3) the
Appellees were not deliberately indifferent to a serious medical need of Russell;
(4) no evidence existed that the Appellees’ conduct amounted to negligence or
gross negligence; and (5) no evidence causally linked Appellees’ conduct to
Russell’s death. The district court granted the Appellees’ motion for summary
judgment, finding that the Appellees were entitled to Eleventh Amendment and
qualified immunity. The district court concluded that Bennett failed to present
any competent evidence substantiating assertions that Russell had a “serious



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medical need” while at the LCIW and that the Appellees were aware of the need
and intentionally failed to treat it. Bennett appeals.
                        II. STANDARD OF REVIEW
      This Court reviews a grant of summary judgment de novo under the same
standard applied by the district court. Terrebonne Parish Sch. Bd. v. Mobil Oil
Corp., 310 F.3d 870, 877 (5th Cir. 2002) (citation omitted). Summary judgment
is appropriate when “the discovery and disclosure materials on file, and any
affidavits show that there is no genuine issue as to any material fact and that
the movant is entitled to a judgment as a matter of law.” FED. R. CIV. P. 56(c).
The moving party bears the burden of identifying an absence of evidence to
support the nonmoving party’s case. Terrebone Parish, 310 F.3d at 877 (citation
omitted).
                               III. DISCUSSION
      “‘[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.’” Easter v. Powell, 467 F.3d 459, 462 (5th Cir. 2006)
(citation omitted). This Court engages in a bifurcated analysis to determine if
a defendant is entitled to qualified immunity. Id. First, the Court must
determine whether, under current constitutional standards, the plaintiff has
alleged a violation of a clearly established constitutional right. Id. If the Court
determines that the plaintiff has fulfilled this standard, the Court must then
determine if the defendant’s conduct was objectively reasonable in light of the
clearly established law at the time of the incident. Id.
      The constitutional right at issue in this case is Russell’s Eighth
Amendment right to be free from cruel and unusual punishment. The Supreme
Court has interpreted the Eighth Amendment as imposing a duty on prison
officials to “‘ensure that inmates receive adequate . . . medical care.’” Id. at 463

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(quoting Farmer v. Brennan, 511 U.S. 825, 832 (1994) (emphasis added). A
prison official violates the Eighth Amendment when his/her conduct
“demonstrates deliberate indifference to a prisoner’s serious medical needs,
constituting an ‘unnecessary and wanton infliction of pain.’”          Id. (citation
omitted) (emphasis added). A delay of medical care can constitute an Eighth
Amendment violation “only ‘if there has been deliberate indifference [that]
results in substantial harm’” Id. (citation omitted).
      To demonstrate deliberate indifference, the plaintiff must show that the
prison official was subjectively aware of the risk of serious harm to the inmate.
Id. A prison official can be found liable under the Eighth Amendment only if
“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.” Id. (citation omitted). If, however, the risk is obvious, the prison
official’s knowledge of a substantial risk of harm may be inferred. Id. (citation
omitted). A disagreement with the treatment provided is not sufficient to state
a claim for deliberate indifference. Id. at 464 (citation omitted). A prison
inmate may also demonstrate deliberate indifference 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.’” Id. (citation omitted).
      Bennett’s argument that there was a delay in medical care as a result of
deliberate indifference on the part of the Appellees fails. Specifically, she alleges
that the Appellees failed to perform a second urine analysis test during the time
of Russell’s confinement at LWIC. The record demonstrates that Russell’s
original urine analysis contained multiple abnormalities. Bennett alleges that
the initial abnormal reading “could indicate infection or other illnesses.” The
prison officials’ failure to repeat the test and treat her for problems associated

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with the abnormal urine analysis may demonstrate that the prison officials were
aware of facts from which the inference could be drawn that there was a
substantial risk of serious harm to Russell. This does not, however, demonstrate
that the prison officials actually drew the inference. “Unsuccessful medical
treatment, acts of negligence, or medical malpractice do not constitute
deliberate indifference, nor does a prisoner’s disagreement with his medical
treatment, absent exceptional circumstances. ‘Furthermore, the decision
whether to provide additional treatment 'is a classic example of a matter for
medical judgment.’” Gobert v. Caldwell, 463 F.3d 339, 346 (5th Cir. 2006)
(quotation omitted) (emphasis added). While the Appellees may very well have
exercised poor medical judgment in not performing additional tests on Russell,
Bennett has not shown that their actions rise to the level of deliberate
indifference.
      The record indicates that Russell visited the infirmary at LWIC numerous
times. On each visit to the infirmary Russell was examined by a medical
professional who provided her with medical care.          Russell was prescribed
different medications to treat various illnesses and levels of pain. At times, she
was excused from work duty, ordered to remain in bed, and given special dietary
requirements. The evidence in the record does not demonstrate that the prison
officials knew of and disregarded an “excessive risk” to Russell’s health or safety.
      Bennett does not present sufficient evidence to demonstrate that a prison
official was aware of facts from which the inference could be drawn that a
substantial risk of serious harm existed for Russell, and that the prison official
actually drew the inference. Easter, 467 F.3d at 463. Mere negligence, neglect,
medical malpractice, and unsuccessful medical treatment do not give rise to a
§ 1983 action. Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991). Based
on the facts in the record, the magistrate judge and the district court judge were
correct in finding that the Appellees’ actions did not amount to deliberate

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indifference. Bennett fails to demonstrate that the Appellees violated Russell’s
constitutional rights under the Eighth Amendment and does not provide the
Court with evidence that demonstrates a wanton disregard for Russell’s “serious
medical needs.” The Appellees, therefore, are entitled to qualified immunity.
                             IV. CONCLUSION
      For the foregoing reasons, we AFFIRM the judgment of the district court.




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