     Case: 15-30458      Document: 00513748743         Page: 1    Date Filed: 11/07/2016




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

                                    No. 15-30458                                   FILED
                                  Summary Calendar                         November 7, 2016
                                                                              Lyle W. Cayce
                                                                                   Clerk
JOSEPH DAUZAT,

                                                 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 HIGGINBOTHAM, PRADO, and HAYNES, Circuit Judges.
PER CURIAM: *
       Bessie Carter, RN; Laura Buckley, LPN; and Casey McVea, MD, appeal
the district court’s denial of their motion to dismiss Joseph Dauzat’s 42 U.S.C.
§ 1983 civil rights action.        Because the district court denied in part the
appellants’ motion to dismiss based on Eleventh Amendment and qualified
immunity, we have jurisdiction to review the judgment under the collateral



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-30458

order doctrine. See Hinojosa v. Livingston, 807 F.3d 657, 663 (5th Cir. 2015);
McCarthy ex rel. Travis v. Hawkins, 381 F.3d 407, 411-12 (5th Cir. 2004).
      The appellants argue that the district court erred in denying their
motion to dismiss based on qualified immunity because Dauzat did not allege
facts indicating that their actions rose to the level of egregious intentional
conduct required to satisfy the deliberate indifference standard. The district
court did not err in denying Buckley’s motion to dismiss based on qualified
immunity. 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. The district court did not
err in determining that Dauzat alleged a valid Eighth Amendment right and
that a reasonable nurse in Buckley’s position would have understood that the
failure to refer him to a physician violated Dauzat’s clearly established
constitutional right. See Easter v. Powell, 467 F.3d 459, 463-64 (5th Cir. 2006);
Lawson v. Dallas County, 286 F.3d 257, 262-63 (5th Cir. 2002).
      Dauzat has alleged facts indicating that he had a serious medical need
for physical therapy, Dr. McVea was aware of the neurosurgeon’s order that he
receive physical therapy, Dr. McVea did not follow those orders, and Dr. McVea
substituted a wellness program that was conducted by inmates and was not
the equivalent of physical therapy conducted by a licensed physical therapist
as ordered by the neurosurgeon. 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




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                                 No. 15-30458

as ordered violated Dauzat’s clearly established constitutional right.       See
Easter, 467 F.3d at 463-64; Lawson, 286 F.3d at 262-63.
      Carter argues that she did not act with deliberate indifference as she
merely deferred to Dr. McVea’s recommendation that Dauzat do physical
therapy in the wellness program. Carter did not attempt to find another
facility or hospital to provide physical therapy to Dauzat. 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. The 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. See Easter,
467 F.3d at 463-64; Lawson, 286 F.3d at 262-63.
      The appellants argue that the district court erred in allowing Dauzat’s
claims for prospective injunctive relief to continue to proceed because he is
currently receiving physical therapy and Carter has retired. The district court
did not err in denying the motion to dismiss based on Eleventh Amendment
immunity as Dauzat’s medical needs have not been completely satisfied as the
neurosurgeon and the physical therapist both ordered follow-up examinations.
Because Dauzat alleged facts indicating that the appellants were deliberately
indifferent to his serious medical needs and because he did not receive physical
therapy until after the district court issued an order in the instant case, the
appellants have not shown that the district court erred in determining that
Dauzat’s claim for prospective injunctive relief should not be dismissed based
on Eleventh Amendment immunity. See Center for Individual Freedom v.
Carmouche, 449 F.3d 655, 661 (5th Cir. 2006); Aguilar v. Texas Dep’t of



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                                 No. 15-30458

Criminal Justice, 160 F.3d 1052, 1054 (5th Cir. 1998). Although Carter has
retired, any prospective injunctive relief could be directed to the current
Director of Nursing in that person’s official capacity.
      Dauzat has filed a motion for appointment of counsel on appeal. Because
he has not demonstrated exceptional circumstances that would warrant the
appointment of appellate counsel, his motion is denied. See Cooper v. Sheriff,
Lubbock County, Tex., 929 F.2d 1078, 1084 (5th Cir. 1991); Ulmer v.
Chancellor, 691 F.2d 209, 213 (5th Cir. 1982).
      AFFIRMED; MOTION FOR APPOINTMENT OF COUNSEL DENIED.




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