     Case: 18-30610      Document: 00514826775         Page: 1    Date Filed: 02/07/2019




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

                                                                                FILED
                                      No. 18-30610                       February 7, 2019
                                                                           Lyle W. Cayce
JOSEPH DAUZAT,                                                                  Clerk


              Plaintiff - Appellee

v.

BESSIE CARTER, RN - CCN/M - Director of Nursing; LAURA BUCKLEY,
LPN; CASEY MCVEA, Doctor,

              Defendants - Appellants




                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:14-CV-239


Before CLEMENT, OWEN, and HO, Circuit Judges.
PER CURIAM:*
       This is the second time that the defendants have appealed the district
court’s denial of qualified immunity. The district court initially denied
immunity at the motion to dismiss stage. That decision was affirmed by this
court on interlocutory appeal. See Dauzat v. Carter, 670 F. App’x 297 (5th Cir.
2016) (per curiam). Following discovery, the defendants again claimed



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 18-30610
immunity at the summary judgment stage. The district court again denied
their motion. The defendants now seek interlocutory review for a second time.
Constrained by our first ruling, we again affirm.
       The crux of Joseph Dauzat’s § 1983 claim is that the defendants—two
nurses and a doctor at the prison where Dauzat is incarcerated—were
deliberately indifferent to his medical needs. On their first appeal, the
defendants argued that Dauzat “did not allege facts indicating that their
actions rose to the level of egregious intentional conduct required to satisfy the
deliberate indifference standard.” See id. at 298. A separate panel of this court
disagreed, explaining how the allegations against each defendant were
sufficient to state a claim.
       As to Nurse Buckley, the panel held:
       Dauzat complained of symptoms that should have put Buckley on
       alert to a serious medical condition that was “so apparent that
       even a layman would recognize that care [was] required.” See
       Gobert v. Caldwell, 463 F.3d 339, 345 n.12 (5th Cir. 2006). Further,
       Buckley’s failure to refer Dauzat to a physician was not objectively
       reasonable conduct.

Id.
       With respect to Doctor McVea, the panel held:
       The district court did not err in denying Dr. McVea’s motion to
       dismiss based on the court’s determination that Dauzat stated an
       Eighth Amendment claim and that a reasonable physician in Dr.
       McVea’s position would understand that the failure to provide
       physical therapy as ordered violated Dauzat’s clearly established
       constitutional right.

Id.
       And finally, with respect to Nurse Carter, the panel held:
       As the Director of Nursing, Carter was aware that the wellness
       program was run by inmates and was not the equivalent of the
       physical therapy ordered by the neurosurgeon for Dauzat.

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                                 No. 18-30610
       [Accordingly, t]he district court did not err in denying Carter’s
       motion to dismiss based on qualified immunity as the court
       determined that Dauzat had stated a valid Eighth Amendment
       claim and that a reasonable nurse in Carter’s position would have
       understood that the failure to provide physical therapy as ordered
       violated Dauzat’s clearly established constitutional right.

Id.
       The defendants continue to believe that their conduct did not violate
clearly established law. Even viewing the evidence in the light most favorable
to Dauzat and drawing all reasonable inferences in his favor, they contend
their behavior was objectively reasonable. And by the defendants’ own
admission, “[t]he facts which are disputed are minor and immaterial to the
question of qualified immunity before the Court.” And so this court is presented
with purely legal issues. The “core of the question” presented by this appeal,
as the defendants characterize it, is whether the district court “incorrectly
identified the particular constitutional rights at issue in this case for the
purpose of the qualified immunity analysis.”
       The only problem with the defendants’ position is that this court cannot
endorse it without overruling the prior panel. Although discovery has occurred,
the facts adduced do not differ meaningfully from the facts this court assumed
to be true at the motion to dismiss stage. There have been no groundbreaking
discoveries or revelations. Excepting two instances, the parties largely agree
on what occurred. The new evidence relied on by the defendants operates
mainly as an attempt to explain and rationalize their behavior. The material
facts recited by the district court in its original opinion denying qualified
immunity at the motion to dismiss stage remain almost entirely unrebutted.
       Now, as then, the essential disagreement between the parties is whether
those facts provide Dauzat with a viable § 1983 claim. The district court and
the original appellate panel sided with Dauzat. “The law-of-the-case doctrine

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                                     No. 18-30610
generally provides that when a court decides upon a rule of law, that decision
should continue to govern the same issues in subsequent stages in the same
case.” Musacchio v. United States, 136 S. Ct. 709, 716 (2016) (internal
quotation marks and citations omitted). Accordingly, the defendants’
arguments are foreclosed.
      As a final note, to address the defendants’ concern that the court’s ruling
in   this   case—if   allowed   to    stand—will    have      far-reaching   negative
consequences, we are not troubled. The defendants argue that upholding the
interpretation already embraced by the previous panel will provide inmates
with a new constitutional right to immediate attention by a doctor and a right
to continuous off-site or professional medical care. But the summary calendar
opinion that affirmed the district court on the prior appeal was unpublished
and is therefore without precedential effect (except insofar as the law-of-the-
case operates on this dispute). See 5th Cir. R. 47.5.4. Moreover, its terse
approval of the magistrate’s opinion contains little reasoning that would
enable future courts to follow its lead. In short, the panel’s opinion will have
no effect beyond the present case.
      AFFIRMED.




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