                               REVISED NOVEMBER 15, 2002


                          UNITED STATES COURT OF APPEALS
                                   FIFTH CIRCUIT

                                          ____________

                                          No. 01-60425
                                          ____________


               SANDRA FAY PHILLIPS, on Behalf of the Wrongful Death
               Beneficiaries of Jonathan Phillips,


                                              Plaintiff - Appellant,

               versus


               MONROE COUNTY, MISSISSIPPI; CHARLES FARMER, DR,
               individually; JOHN BEARRY, individually,


                                              Defendants - Appellees.



                          Appeal from the United States District Court
                            For the Northern District of Mississippi


                                         October 28, 2002

Before WIENER, EMILIO M. GARZA, and PARKER, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

       Sandra Fay Phillips, the plaintiff, appeals the district court’s judgment as a matter of law in

favor of Monroe County, Mississippi, Dr. Charles Farmer, and Dr. John Bearry (collectively “the

defendants”), in this wrongful death suit brought under 42 U.S.C. § 1983. Phillips’s son, Jonathan
Phillips (the Decedent), died from testicular cancer while serving a sentence for aggravated assault

in the Mississippi prison system. Phillips claims the defendants wrongfully caused the Decedent’s

death in violation of the Eighth and Fourteenth Amendments to the United States Constitution by

refusing to provide the Decedent with necessary medical care. Additionally, Phillips brought a state

law negligence claim against Monroe County. Using the standard announced in Reeves v. Sanderson

Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000), we affirm, because

the plaintiff failed to prove the necessary causal link between the Decedent’s death and the acts or

omissions of the defendants. Additionally, the state law claim against Monroe County is barred by

§ 11-49-9(1)(m) of the Mississippi Code.

       Most of the relevant facts surrounding this case are undisputed. The Decedent was diagnosed

with widespread testicular cancer, including disease in the lymph nodes, abdominal cavity and lungs,

in September 1996. He underwent surgery and chemotherapy, and was pronounced in remission

within six months. In 1997, the Decedent’s cancer returned, he completed three more rounds of

chemotherapy, and was again found to be in remission. Before he was diagnosed with cancer, the

Decedent was involved in a fight, for which he was later arrested and charged with aggravated

assault. He pled guilty and was sentenced to 20 years imprisonment, with 15 years suspended. The

Decedent began serving his sentence on May 15, 1998, when he was taken into custody by the

Monroe County Sheriff’s Department (the “Sheriff’s Department”). Soon thereafter, he began

complaining of chest pains, shortness of breath, headaches, and spitting up blood. Upon learning of

his symptoms, the Decedent’s family immediately contacted his oncologist, Dr. Julian Hill. Dr. Hill

was located in Tupelo, Mississippi. Due to the distance between the jail and Dr. Hill’s office, Dr. Hill

instructed the Sheriff’s Department to take the Decedent to a local physician for blood work. After


                                                  -2-
reviewing the results of the blood tests, Dr. Hill insisted the Decedent be brought to him for further

tests. The Sheriff’s Department complied, and the Decedent had more extensive tests, including CT

scans, on June 24th. Dr. Hill found that the Decedent’s cancer had reappeared in his lungs and spread

to his spleen, and Dr. Hill advised the Decedent’s family and the Sheriff’s Department that the

Decedent needed to receive salvage chemotherapy immediately and that it should begin no later than

June 29th.

       For reasons that are disputed and not relevant to our analysis, the Sheriff’s Department sought

to have the Decedent transferred to the state prison system to receive his chemotherapy treatments.

It first attempted to have the sentencing court modify the Decedent’s sentence so that he could be

under house arrest during his treatment, but the judge found he was without jurisdiction to do so.

Monroe County’s Chief Deputy next contacted Dr. John Bearry, the Medical Director at the

Mississippi State Penitentiary at Parchman, to determine what steps should be taken to transfer the

Decedent given his medical needs. Dr. Bearry’s office advised the Sheriff’s Department to

immediately transfer the Decedent from the Monroe County jail to the Central Mississippi

Correctional Facility in Rankin County. The Decedent was transferred on June 29, and Dr. Charles

Farmer, a staff physician, gave the Decedent a standard intake physical exam and referred the

Decedent to the University Medical Center in Jackson for cancer treatment. The prisoner referral

process is time-consuming, but Dr. Farmer managed to schedule an appointment for the Decedent

for July 14.

       On July 1, the Decedent suffered abdominal pain and began vomiting. He was sent to the

emergency room at the University Medical Center, diagnosed with pneumonia, given antibiotics, and

returned to the prison. Eight days later, the Decedent began having seizures and fell unconscious in


                                                 -3-
his cell. He was immediately transported to the University Medical Center, where he was diagnosed

with a brain tumor. The Decedent’s treating physicians at the Center, including Dr. James Thigpen,

concluded that the testicular cancer had metastasized to the Decedent’s brain, and they prescribed

immediate aggressive radiation therapy. The treating physicians felt that chemotherapy would not

have been an effective therapy for the brain tumor. Despite the radiation treatments, the Decedent

died on July 18, 1998, and his death certificate lists the cause of death as herniation of the brain due

to cancer.

       Phillips subsequently brought this action on behalf of the wrongful death beneficiaries of the

Decedent, alleging that his death was due to Monroe County’s refusal to provide necessary medical

care and failure to have policies providing for medical treatment for those prisoners in need of medical

care. The complaint was later amended to include Dr. Bearry and Dr. Farmer, individually, for gross

negligence and willful indifference to the Decedent’s rights, alleging that they were deliberately

indifferent to the Decedent’s medical needs because they failed to provide him with the immediate

course of chemotherapy prescribed by Dr. Hill. After Phillips presented her case, the defendants

moved for judgment as a matter of law. The district court granted the motion on all grounds, finding

that the defendants were not deliberately indifferent to the Decedent’s medical needs, and thus did

not violate his constitutional rights, and that the state law claim against Monroe County was barred

because Mississippi had not waived its sovereign immunity in this circumstance.

       We review a district court's ruling on a motion for judgment as a matter of law de novo.

Industrias Magromer Cueros y Pieles S.A. v. Louisiana Bayou Furs Inc., 293 F.3d 912, 918 (5th Cir.

2002). Federal Rule of Civil Procedure 50(a) states that a court should render a judgment as a matter

of law when “a party has been fully heard on an issue and there is no legally sufficient evidentiary


                                                  -4-
basis for a reasonable jury to find for that party on that issue.” In Reeves v. Sanderson Plumbing

Products, Inc., the Supreme Court clarified the approach a court should use when granting a

judgment as a matter of law. First, we must review the record “taken as a whole.” 530 U.S. 133,

150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (internal citation omitted). Second, in reviewing all

of the evidence in the record, we must “draw all reasonable inferences in favor of the nonmoving

party” and “not make credibility determinations or weigh the evidence.” Id. In other words, we must

give credence to the evidence supporting the nonmovant as well as any evidence supporting the

moving party that is uncontradicted, unimpeached, and not attributable to interested witnesses. Id.

at 151.

          Section 1983 provides a cause of action for persons who are subjected to the deprivation of

any constitutional right by a person acting under the color of state or federal law. Although Phillips

brings this suit in federal court under § 1983, she is not alleging that her constitutional rights were

violated. Likewise, she does not seek relief as the personal representative of the Decedent’s estate.1


          1
          We have carefully reviewed the record for any evidence that this suit was brought as a
survival action because such actions, which are very similar to wrongful death suits, are also available
under § 1983. See Moor v. County of Alameda, 411 U.S. 693, 702-03 n.14, 93 S.Ct. 1785, 36
L.Ed.2d 596 (1973) (“[P]ursuant to § 1988 state survivorship statutes which reverse the common-law
rule may be used in the context of actions brought under § 1983.”); Brazier v. Cherry, 293 F.2d 401,
406-07 (5th Cir. 1961) (incorporating both a state’s survival statute and its wrongful death statute
to provide full remedies for § 1983 violations). We pause at this point to emphasize the importance
of the distinction between survival and wrongful death causes of action. If Phillips had brought this
suit as a survival action, the causation analysis would be different because that type of claim redresses
any constitutional injuries suffered by the Decedent before his death.
          The record is somewhat ambiguous in this regard. The captions of both the original and
amended complaint conspicuously refer to the Phillips family as wrongful death beneficiaries; the facts
alleged characterize the suit as a wrongful death claim; and the parties, as well as the court, repeatedly
refer to the case as a wrongful death suit. On the other hand, the types of damages sought by Phillips
suggest she might have meant to bring both wrongful death and survival actions. Importantly,
however, Phillips never refers to herself or any of the plaintiffs as personal representatives of the
Decedent’s estate, nor does she clearly assert that she is in fact the Decedent’s executor or

                                                   -5-
In other words, Phillips is not suing to redress her own § 1983 claims or any constitutional claims the

Decedent might have had prior to his death. Instead, Phillips sues on behalf of the wrongful death

beneficiaries of the Decedent. She seeks to recover for the injuries the Phillips family suffered as a

result of the Decedent’s death, which, in turn, was allegedly caused by the defendants’ violation of

the Decedent’s constitutional rights.

       Wrongful death recovery under § 1983 has “generated considerable confusion and

disagreement.” Rhyne v. Henderson County, 973 F.2d 386, 390 (5th Cir. 1992) (quoting Crumpton

v. Gates, 947 F.2d 1418, 1420 (9th Cir. 1991)). The Supreme Court has not yet addressed this issue,

and, while the circuits are divided over whether such recovery is appropriate, we have consistently

allowed it. See Rhyne, 973 F.2d at 390-91 (summarizing the line of cases permitting such recovery);

Brazier, 293 at 406-07.

       Wrongful death statutes create new causes of action on behalf of the statutorily-designated

persons in order to compensate them for the death of the decedent. See, e.g., Thames v. Mississippi

ex rel. Shoemaker, 117 F.2d 949, 951 (5th Cir. 1941) (holding that Mississippi’s wrongful death

statute creates an independent cause of action). Unlike a survival action, a wrongful death action

cannot be maintained unless the defendant’s conduct is the cause of the decedent’s death. SHELDON

H. NAHMOD, CIVIL RIGHTS        AND   CIVIL LIBERTIES LITIGATION § 4:67 (4th ed., 2001 update).

Accordingly, a plaintiff seeking to recover on a wrongful death claim under § 1983 must prove both


administrator. Under Mississippi’s general survivorship statute, only executors, administrators, and
temporary administrators may bring a survival action. MISS. CODE ANN. § 91-7-233 (1994). Thus,
without alleging the appropriate legal status, Phillips could not have brought a survival action. See
Berryhill v. Nichols, 158 So. 470, 471 (Miss. 1935) (holding that recovery for pain and suffering of
deceased allegedly caused by the negligence of doctor can only be had in suit by personal
representative and not by next of kin or heirs at law). Because Phillips could only have brought this
suit as a wrongful death claim, we do not address the merits of a survival action.

                                                 -6-
the alleged constitutional deprivation required by § 1983 and the causal link between the defendant’s

unconstitutional acts or omissions and the death of the victim, as required by the state’s wrongful

death statute.

       We decline to address whether Phillips proved any constitutional violations on the part of the

defendants because no reasonable jury could have found for Phillips on the wrongful death causation

issue. Reviewing the entire record and drawing all reasonable inferences in favor of Phillips, we find

the evidence is uncontradicted that, even if the defendants arranged for the Decedent to begin

chemotherapy on June 29th, as recommended by Dr. Hill, such action would not have prevented the

Decedent’s death.

       The Decedent’s death certificate lists the cause of death as “brain herniation” due to the

metastatic testicular cancer. At trial, the Decedent’s aunt testified that the treating physician

explained to the Phillips family that the Decedent’s death was caused when the brain tumor swelled

so much that it herniated his brain. Dr. Thigpen, a disinterested witness, testified that the Decedent’s

death was a direct result of the cancer’s metastasis to the brain and that chemotherapy would not

have influenced the brain tumor in any way. His uncontradicted testimony was that chemotherapy

is not an effective treatment for brain tumors because the drugs do not pass into the brain. Phillips

confirmed during her testimony that the doctors had advised the family that chemotherapy would be

ineffective. Dr. Thigpen also testified that the cancer did not spread to the brain because of the delay

in initiating chemotherapy. In his opinion, the cancer had spread to the brain about six months before

the Decedent passed away.

       It is also undisputed that Dr. Hill, the Decedent’s treating physician, had only the Decedent’s

chest, abdomen, and pelvis scanned in late June. No CT scan was done of the Decedent’s brain prior


                                                  -7-
to the onset of his seizures on July 9. Dr. Hill further admitted at trial that, even with the salvage

chemotherapy he had prescribed, the Decedent could, at most, have hoped for a thirty to forty percent

chance of some temporary remission of his cancer. Finally, on July 1, when the Decedent was

admitted to the emergency room and diagnosed with pneumonia, the doctors at the Medical Center

performed a thorough neurological exam, and the results were normal. Dr. Thigpen’s undisputed

testimony at trial was that no physician would have had any reason to order a brain scan or radiation

therapy until appropriate symptoms appeared. The Decedent’s seizure on July 9 is the only evidence

in the record of such symptoms, and it was immediately after this event that the correctional facility

transferred the Decedent to the University Medical Center for appropriate treatment. In sum, there

is no evidence in the record of any possible medical treatment that Monroe County or the individual

defendants could have provided to save the life of the Decedent.

       Phillips argues in her brief that it is not necessary for her to prove chemotherapy would have

saved the Decedent’s life. First , she refers to the fright and anxiety both she and the Decedent

suffered because of the delay in chemotherapy. In this regard, Phillips confuses the causation issue.

In a survival action, damages for the Decedent’s physical suffering and mental anxiety as a result of

the alleged deprivation of medical care would have been appropriate. In a wrongful death context,

however, no damages are available until the plaintiff has cleared the causation hurdle. See Wilks v.

Am. Tobacco Co., 680 So.2d 839, 842 (Miss. 1996) (holding that plaintiff’s failure to prove

decedent’s death was caused by the wrongful acts of the defendant precludes any recovery of

wrongful death damages under Mississippi’s wrongful death statute).

       Second, Phillips suggests that she need only prove the defendants’ actions increased the

Decedent’s risk of death due to the cancer. She seems to refer to the “loss of chance” doctrine often


                                                 -8-
applied in medical malpractice contexts. The supporting cases she cites relate to medical malpractice

suits and are not relevant here. See Bach v. Trident Steamship Co., Inc., 920 F.2d 322, 327 (5th Cir.

1991) (declining to expand the “loss of chance” doctrine beyond its normal context of medical

malpractice). In conclusion, we find that Phillips failed to prove that any acts or omissions on the part

of the defendants caused the Decedent’s death, and thus she has failed to prove the elements of her

wrongful death claim.

        Phillips also appeals the district court’s judgment as a matter of law for Monroe County on

the state law negligence claim. Mississippi waives sovereign immunity for itself and its political

subdivisions in § 11-46-5 of the Mississippi Code, but subjects this blanket waiver to numerous

exceptions, including those listed in § 11-46-9. In pertinent part, § 11-46-9 provides:

        (1) A governmental entity and its employees acting within the course and scope of
        their employment or duties shall not be liable for any claim:

        (m) Of any claimant who at the time the claim arises is an inmate of any detention
        center, jail, workhouse, penal farm, penitentiary or other such institution, regardless
        of whether such claimant is or is not an inmate of any detention center, jail,
        workhouse, penal farm, penitentiary or other such institution when the claim is filed.

MISS. CODE ANN. § 11-46-9(1)(m) (Supp. 2001). In Sparks v. Kim, 701 So.2d 1113, 1114 (Miss.

1997), the Mississippi Supreme Court applied this exception to a wrongful death claim. Thus, § 11-

49-9(1)(m) bars Phillips’s state law negligence claim against Monroe County.

        Phillips asserts in her brief that this provision is unconstitutional on the grounds that it violates

the Equal Protection clause of the Fourteenth Amendment by denying equal protection to prisoners.

We find that Phillips waived the constitutionality issue by failing to present it in either her original or




                                                    -9-
amended complaint, as well as by failing to include it in the pretrial order.2 See Elvis Presley Enters.,

Inc. v. Capece, 141 F.3d 188, 206 (5th Cir. 1998) (holding that claims or issues omitted from the

pretrial order are waived, even if they appeared in the complaint); Ysleta Del Sur Pueblo v. State of

Texas, 36 F.3d 1325, 1332 (5th Cir. 1994) (holding that it is inappropriate to reach constitutional

issues when a case can be decided on other grounds).

        For these reasons, we find that the district court properly found for the defendants on all

claims and the judgment as a matter of law is AFFIRMED.




        2
         Nor does the constitutional challenge appear to have merit. Prisoners are not a suspect or
quasi-suspect class, and the Mississippi Supreme Court has already identified a legitimate state
interest for § 11-46-9(1)(m) that more than meets the burden of rationality review. See Sparks, 701
So. 2d at 1116 (finding that the statute protects the state’s ability to hire competent prison personnel).

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