     Case: 14-11135       Document: 00513347080         Page: 1     Date Filed: 01/19/2016




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

                                     No. 14-11135                                   FILED
                                   Summary Calendar                           January 19, 2016
                                                                               Lyle W. Cayce
                                                                                    Clerk
TRAVIS HUNTER BLANK,

                                                  Plaintiff - Appellant

v.

R.N. LINDA BELL,

                                                  Defendant - Appellee


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:11-CV-1327


Before BARKSDALE, CLEMENT, and ELROD, Circuit Judges.
PER CURIAM: *
       Travis Hunter Blank, federal prisoner # 16486-078, filed a 42 U.S.C.
§ 1983 complaint against Linda Bell, a nurse at the Rockwall County Jail,
alleging she was deliberately indifferent to his serious medical needs (Crohn’s
disease and a preexisting neck injury), while he was a pretrial detainee at the
jail. The district court granted Nurse Bell’s motion for summary judgment on
the basis of qualified immunity.


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 14-11135

      Although he had assistance of counsel in district court, Blank proceeds
pro se on appeal. In challenging the summary judgment against four of his
deliberate-indifference claims, Blank asserts Nurse Bell wrongfully: denied or
delayed his requests to see Dr. Sandknop, the jail medical officer, for treatment
of his Crohn’s disease; refused to comply with hospital discharge instructions
that he be seen by a specialist or outside doctor for that disease; failed to
administer a special diet for that disease as allegedly ordered by Dr. Sandknop;
and, deprived him narcotic pain medication for his neck injury. (Blank made
other claims against Bell; but, he briefs only the four above-described claims
on appeal. Accordingly, Blank is deemed to have abandoned the unbriefed
claims. E.g., Yohey v. Collins, 985 F.2d 222, 224–25 (5th Cir. 1993).) For each
of his four claims, Blank fails to establish the requisite genuine dispute of
material fact, as discussed below.
      A summary judgment is reviewed de novo, applying the same standards
as the district court. Hernandez v. Yellow Transp., Inc., 670 F.3d 644, 650 (5th
Cir. 2012). Summary judgment is proper “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). To defeat summary judgment, the
nonmovant must set forth specific facts showing the existence of a genuine
dispute for trial. Fed. R. Civ. P. 56(c)(1). All facts and reasonable inferences
must be construed in favor of the nonmovant, and the court must not weigh
evidence or determine credibility. Deville v. Marcantel, 567 F.3d 156, 163–64
(5th Cir. 2009).
      Upon an invocation of qualified immunity, however, “the usual summary
judgment burden of proof is altered”. Michalik v. Hermann, 422 F.3d 252, 262
(5th Cir. 2005). Blank may not “rest on conclusory allegations and assertions”
and “must demonstrate genuine [disputes] of material fact regarding the



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                                  No. 14-11135

reasonableness of [Nurse Bell’s] conduct”. Id. On the other hand, facts and
reasonable inferences are still construed in Blank’s favor. Tolan v. Cotton, 134
S. Ct. 1861, 1866 (2014).
      The qualified immunity defense protects “all but the plainly incompetent
or those who knowingly violate the law”. Malley v. Briggs, 475 U.S. 335, 341
(1986). To defeat the defense of qualified immunity, Blank must plead facts to
show: a violation of a constitutional or statutory right; and, in the light of
clearly established law, Nurse Bell’s conduct was objectively unreasonable.
E.g., Short v. West, 662 F.3d 320, 325 (5th Cir. 2011).
      Concerning the first prong of the qualified immunity analysis, violation
of a constitutional or statutory right, all of Blank’s contentions rest on Nurse
Bell’s alleged deliberate indifference to his need for medical care. “A pretrial
detainee’s constitutional right to medical care, whether in prison or other
custody, flows from the . . . due process guarantees of the Fourteenth
Amendment.” Wagner v. Bay City, Tex., 227 F.3d 316, 324 (5th Cir. 2000).
“Liability for failing to provide such care attaches if [Blank] can show that a
state official acted with deliberate indifference to a substantial risk of serious
medical harm and that injuries resulted.” Id.
      “‘Deliberate indifference’ requires that the official have subjective
knowledge of the risk of harm.” Id. (emphasis in original). Therefore, Blank
must demonstrate a genuine dispute of material fact that: Nurse Bell “had
subjective knowledge of facts from which an inference of substantial risk of
serious harm could be drawn”; she “drew that inference”; and her “response to
the risk indicates [she] subjectively intended that harm occur”. Tamez v.
Manthey, 589 F.3d 764, 770 (5th Cir. 2009) (internal quotation marks omitted).
In other words, Blank must demonstrate a genuine dispute of material fact
that Nurse Bell “refused to treat him, ignored his complaints, intentionally



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treated him incorrectly, or engaged in any similar conduct that would clearly
evince a wanton disregard for any serious medical needs”. Domino v. Tex. Dep’t
of Criminal Justice, 239 F.3d 752, 756 (5th Cir. 2001).
      Along that line, neither an incorrect diagnosis nor the failure to alleviate
a significant risk that should have been perceived, but was not, is sufficient to
establish deliberate indifference.     Id.   Unsuccessful treatment, medical
malpractice, and acts of negligence do not constitute deliberate indifference;
nor does a prisoner’s disagreement with his medical treatment, absent
exceptional circumstances. Gobert v. Caldwell, 463 F.3d 339, 346 (5th Cir.
2006). Moreover, a delay in treatment is not unconstitutional, unless there has
been deliberate indifference that results in substantial harm. See Mendoza v.
Lynaugh, 989 F.2d 191, 195 (5th Cir. 1993). In short, “[d]eliberate indifference
is an extremely high standard to meet”. Domino, 239 F.3d at 756.
      First, Blank asserts the court erred in granting summary judgment
against his claim that Nurse Bell impermissibly delayed or denied his access
to Dr. Sandknop. Blank contends the evidence showed Nurse Bell failed to
contact Dr. Sandknop about the deterioration of his Crohn’s condition for long
periods of time.
      Blank points to no evidence in the record to substantiate that belief. At
his deposition, he admitted he did not have any evidence that Nurse Bell kept
him from seeing Dr. Sandknop. A party may not rely upon unsubstantiated or
conclusory assertions. Morris v. Covan World Wide Moving, Inc., 144 F.3d 377,
380 (5th Cir. 1998). Dr. Sandknop attested that Nurse Bell did not interfere
with his treatment of Blank and he was unaware that anyone at the jail,
including Nurse Bell, failed to comply with any of his orders relating to Blank’s
treatment. Contrary to Blank’s assertion, and as noted above, the court was
not required to assume that his unsubstantiated allegations regarding his



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access to Dr. Sandknop were true. See Fed. R. Civ. P. 56(e); Pioneer Expl.,
L.L.C. v. Steadfast Ins. Co., 767 F.3d 503, 511 (5th Cir. 2014).
      Blank’s desire to see Dr. Sandknop more often amounts to a disagree-
ment over his treatment, which, as discussed supra, does not rise to the level
of deliberate indifference. See Gobert, 463 F.3d at 346. Even if Blank could
show he should have seen Dr. Sandknop more, and Nurse Bell was aware of
that need, but denied or delayed access, at best, he alleges medical malpractice
or negligence, which, as stated supra, are insufficient to establish a
constitutional violation. Id.
      Second, Blank contends the court erred in granting summary judgment
against his claim that Nurse Bell denied him access to a specialist. He relies
heavily upon the fact that, following his three hospitalizations, his discharge
instructions directed he see a specialist or other outside private general
practitioner. Blank asserts the evidence shows Nurse Bell consciously chose
to ignore the hospital-discharge instructions in that regard.
      Although the intentional failure to schedule an appointment with a
specialist may amount to deliberate indifference when it causes substantial
harm, the negligent failure to schedule an appointment does not. See, e.g.,
Carrothers v. Kelly, 312 F. App’x 600, 602–03 (5th Cir. 2009) (unpublished);
Stewart v. Murphy, 174 F.3d 530, 534 (5th Cir. 1999). The undisputed evidence
showed that, when a person incarcerated at the jail returned from the hospital
with discharge instructions directing he see an outside doctor or specialist, the
decision to make the referral remained with Dr. Sandknop. Blank does not
contest that, following each of his hospitalizations, Dr. Sandknop either saw
him personally or prescribed the medications indicated on the discharge
instructions. Blank’s allegation he should have been seen by a specialist
amounts to a disagreement about his course of medical treatment or



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                                  No. 14-11135

negligence, which, again, is not actionable.     See Gobert, 463 F.3d at 346.
Moreover, a decision not to prescribe treatment recommended by an outside
physician does not constitute deliberate indifference. See, e.g., Stewart, 174
F.3d at 535.
        Third, Blank maintains Nurse Bell was deliberately indifferent to his
serious medical needs when she disregarded Dr. Sandknop’s direct order that
he be given a special diet (the avoidance of spicy and fried foods). “Prison
officials have a constitutional obligation to provide reasonably adequate food”
to inmates. Eason v. Thaler, 14 F.3d 8, 10 (5th Cir. 1994).
        Although Blank may have interpreted Dr. Sandknop’s statement that he
should “avoid” spicy and fried foods as a medical order, no such written order
appears in the record. Blank did not challenge Dr. Sandknop’s statement that,
if he ordered a special diet, it would have been included in the progress notes.
Further, Nurse Bell did not recall discussing a special diet with Dr. Sandknop
at any time. Blank’s unsubstantiated and subjective belief that Dr. Sandknop
ordered a special diet is insufficient. See Morris, 144 F.3d at 380.
        Blank’s unsupported assertion that “special diets are required” for
Crohn’s patients and that Bell’s failure to administer such a diet supports a
finding of deliberate indifference similarly fails. Dr. Sandknop stated there
were no medically specialized diets for Crohn’s patients, and Blank did not
challenge this assertion. To the extent he maintains a special diet should have
been ordered, such a contention amounts to a disagreement with the course of
his medical treatment and, again, is not actionable. See Gobert, 463 F.3d at
346.
        In addition, the evidence indicated that, when Nurse Bell learned Blank
began rejecting his food, she went to great lengths to provide him with
alternative nutrients and made requests for specialized food trays. Blank fails



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                                    No. 14-11135

to demonstrate that Nurse Bell intentionally delayed or denied him access to
proper nutrition or otherwise engaged in any conduct that indicated “a wanton
disregard for any serious medical needs”. Domino, 239 F.3d at 756.
      Fourth, and finally, Blank maintains the court erred in granting
summary judgment against his claim that Bell was deliberately indifferent to
his alleged neck injury; specifically, her failure to provide a narcotic painkiller.
The record showed Nurse Bell did not have the authority to prescribe
medications, and it was in Dr. Sandknop’s discretion whether to follow any
medication    prescriptions    in    Blank’s   hospital-discharge     instructions.
Accordingly, Blank fails to show Nurse Bell acted with deliberate indifference.
See id.
      AFFIRMED.




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