                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                   July 26, 2004

                                                         Charles R. Fulbruge III
                            No. 03-40274                         Clerk



SALLY HART, Independent Executrix of the Estate of Joseph L.
Hall,

                                               Plaintiff-Appellee,

versus


TEXAS DEPARTMENT OF CRIMINAL JUSTICE; ET AL,
                                                         Defendants,
GLENDA M. ADAMS, M.D.,

                                               Defendant-Appellant.

                        --------------------
            Appeal from the United States District Court
                 for the Southern District of Texas
                            (G-02-CV-211)
                        --------------------

Before DAVIS, WIENER, and STEWART, Circuit Judges.

PER CURIAM:*

         Defendant-Appellant Glenda M. Adams, M.D. (“Dr. Adams”)

appeals the district court’s denial of summary judgment.          Texas

prison inmate Joseph Hall originally brought suit in the district

court alleging that Dr. Adams, in her capacity as Eastern Regional

Medical Director, University of Texas Medical Branch Correctional

Managed Care (“UTMB”), violated his Eighth Amendment right to

adequate medical care by demonstrating deliberate indifference to


     *
       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this opinion should not be published and is not precedent except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.
the serious medical needs of inmates, including himself.1             In the

district court, Dr. Adams filed a motion for summary judgment based

on qualified immunity, which motion the court denied.             We dismiss

this appeal, based on our conclusions that (1) Hall has alleged a

violation of a clearly established constitutional right, and (2)

any   decision    on   whether   Dr.   Adams’s   conduct   was   objectively

unreasonable turns on a genuine dispute about issues of material

fact, which we have no jurisdiction to consider at this stage of

the action.

                        I.   Facts and Proceedings

      The three individuals most intimately involved with this case

were all associated with the Texas Department of Criminal Justice

(“TDCJ”) at the time that the incidents giving rise to the lawsuit

took place.      Hall was an inmate at the Wynne Unit of the TDCJ; Dr.

Curtis Kovacs (“Dr. Kovacs”) was the acting Medical Director at the

Wynne Unit; and Dr. Adams was UTMB’s Eastern Regional Medical

Director and, in that capacity, was Dr. Kovacs’s superior.

      In October 1997, Dr. Kovacs noticed a suspicious nodule in one

of Hall’s lungs when reviewing Hall’s annual chest x-ray at the

Wynne Unit.       Dr. Kovacs recommended that Hall be referred to a

facility at which he could receive a CAT scan.         This would require


      1
       Hall died in April 2003 and the executrix of his estate,
Sally Hart, has continued his lawsuit.       Because the central
allegations made in the district court revolve around Hall and the
time he spent as an inmate in the Texas Department of Criminal
Justice, however, this opinion refers to Hall as the plaintiff.

                                       2
that   Hall    be     transferred       to   the      Estelle   Unit     in    Galveston

(“Estelle”), where appropriate facilities were located.                        Dr. Adams

approved Dr. Kovacs’s CAT scan referral for Hall in late October.

Corrections     officers         attempted       to   effect    Hall’s    transfer      in

December      1997,     but      when     they    arrived      at    Hall’s     cell    at

approximately 10:30 pm, they could provide him no information

regarding     why     he   was    being    “chained     out”    to    Estelle.         Hall

testified that, because going to Estelle would require a full

transfer, with a change in living conditions and potential loss of

privileges, he went to the infirmary to inquire as to the reason

for the transfer, but received no information there either.                             As

neither the officers nor the infirmary personnel could tell Hall

why he was being transferred, he declined unspecified medical

treatment rather than accept the transfer to Estelle. No follow-up

was ever pursued, by either Dr. Kovacs or Dr. Adams, so Hall never

received the CAT scan.

       During his tenure as acting Medical Director of the Wynne Unit

(January 1997 to May 1998), Dr. Kovacs consistently complained to

Dr. Adams about the prisoner referral and transfer system.                        In Dr.

Kovacs’s opinion, as expressed in several personal conversations he

had with Dr. Adams and in monthly reports that he prepared and

furnished to her, the system was failing: Many inmates failed to

receive needed medical care as a direct result of problems and

deficiencies in the referral and transfer system.                             Dr. Kovacs

indicated in several reports that transfer refusals by inmates

                                             3
(generally because of the Estelle Unit’s reputation for poor living

conditions) presented a continuing health problem. Dr. Kovacs also

proposed changes that he thought might correct the problems arising

out of refused or otherwise failed transfers, but his suggestions

were rejected.

       Dr. Kovacs’s actions —— and Dr. Adams’s responses (and non-

responses) to them —— are at the heart of the instant suit.                         Hall

alleges that Dr. Kovacs made Dr. Adams aware of serious problems

with    the    referral        system      that   Dr.     Kovacs    considered      were

endangering patients’ lives, and that Dr. Adams’s intentional

refusal       to     address       these    problems      constituted       deliberate

indifference to the health and safety of inmates.                      Hall contends

that Dr. Adams’s actions towards inmates in general deprived him of

his constitutional right to adequate medical care under the Eighth

Amendment, regardless of the fact that she did not personally block

his access to medical care.

       After       his   release    from    prison   in    August   2001,    Hall    was

diagnosed with lung cancer and was told that he had approximately

one year to live.              The cancer spread to his skeletal system,

requiring the amputation of one leg.                 Hall died in April 2003.

                                     II.    Analysis

A.   Jurisdiction




                                             4
      The courts of appeals have jurisdiction to hear appeals from

“final decisions” of the district courts.2              Although this is an

interlocutory appeal, we have jurisdiction to review denials of

summary judgments seeking qualified immunity under the “collateral

order” doctrine, as explained by Mitchell v. Forsyth.3               Because

qualified immunity implicates the right not to stand trial, denial

of a qualified immunity claim is final in that the right to avoid

trial altogether cannot be vindicated by later appeal.4                   Our

jurisdiction in such cases is not unlimited, however.                 As the

qualified immunity analysis is “significantly different from the

questions underlying [a] claim on the merits,” and questions of

“evidence sufficiency” are not appealable,5 we may only review a

denial of qualified immunity “to the extent that it turns on an

issue of law.”6

      Our case law has adhered to these principles. As we explained

in Cantu v. Rocha, interlocutory appeals are based on an issue of

law   ——   and   therefore    appealable   ——   “when    they   concern   only

application of established legal principles, such as whether an

official’s conduct was objectively reasonable in light of clearly



      2
          28 U.S.C. § 1291.
      3
          472 U.S. 511 (1985).
      4
          See Mitchell, 472 U.S. at 526-27.
      5
          Johnson v. Jones, 515 U.S. 304, 314 (1995).
      6
          Mitchell, 472 U.S. at 530.

                                     5
established law, to a given (for purposes of appeal) set of

facts.”7      Although we will consider only undisputed facts when

deciding such legal issues, a defendant may argue that sufficient

undisputed facts exist to establish immunity.8

      This is essentially what Dr. Adams argues in the instant case,

despite      the   district   court’s   asserted   rationale   for   denying

qualified immunity, made clear in its response to Dr. Adams’s

Motion to Reconsider: “This Court ... remains of the opinion, ...

that ... there are ‘genuine’ issues of fact in dispute and that

those factual issues are ‘material’ ....” As we summarized this

problem in Bazan v. Hidalgo County, even questions of law such as

whether a defendant’s actions are objectively reasonable “cannot be

decided if there are genuine issues of material fact.”9                  We

therefore have jurisdiction over the instant case to the extent,

but only to the extent, that no underlying factual issues exist.

B.   Standard of Review

      We review a district court’s decision on summary judgment de

novo, applying the same standard as did the district court.10


      7
           77 F.3d 795, 802 (5th Cir. 1996) (emphasis added).
      8
       See, e.g., Hart v. O’Brien, 127 F.3d 424, 436 (5th Cir.
1997)(abrogated by the Supreme Court on other grounds, see Spivey
v. Robertson, 197 F.3d 772 (5th Cir. 1999)).
      9
           246 F.3d 481, 490 (5th Cir. 2001) (emphasis in original).
      10
       See, e.g., Allen v. Rapides Parish Sch. Bd., 204 F.3d 619,
621 (5th Cir. 2000); McDaniel v. Anheuser-Busch, Inc., 987 F.2d
298, 301 (5th Cir. 1993).

                                        6
C.   Qualified Immunity

      Our review of denials of qualified immunity comprises a two-

pronged inquiry: “(1) under existing law, does the plaintiff allege

a violation of an actual, clearly established constitutional or

federal statutory right; and (2) if so, was the defendant’s conduct

objectively unreasonable in the light of clearly established law

at the time of that conduct.”11        Despite the district court’s

assertion that its denial of qualified immunity was based on

genuine issues of material fact, we have jurisdiction to review

questions of law, including “(1) ‘the issue of whether and when a

right is clearly established’; and (2) ‘to the extent that the

relevant discrete, historic facts are undisputed, ... the question

of the objective unreasonableness of the defendant’s conduct.’”12

Dr. Adams asserts that the district court erred in its decisions on

both these questions.

1.   Was the right clearly established?

      Dr. Adams insists that even though the general right to

adequate medical care was clearly established at the time that the

events giving rise to this lawsuit occurred, the “exact contours”

of that right were not.     Dr. Adams contends that because the

contours of the right were ill-defined, a public official in her


      11
        Felton v. Polles,    315   F.3d   470,   473   (5th   Cir.   2002)
(emphasis in original).
      12
       Id. at 478 (quoting Pierce v. Smith, 117 F.3d 866, 871 (5th
Cir. 1997).

                                   7
position could not have known that the alleged actions violated

that right.      For support, Dr. Adams cites Thompson v. Upshur

County, in which we explained that “[w]hen assessing the scope of

clearly established      law ... it is necessary to articulate the

asserted constitutional right more specifically.”13     Dr. Adams also

relies on Sorenson v. Ferrie, which contains similar language:

“[F]or qualified immunity to be surrendered, pre-existing law must

dictate, that is, truly compel ... the conclusion ... that what

defendant is doing violates federal law in the circumstances.”14

Given this precedent and the unique fact pattern of the instant

case,     Dr.   Adams   argues   that   finding   a   clearly   defined

constitutional right here would be to dictate “that a prison

official has an affirmative duty to identify an inmate who refuses

a referral to a medical specialty clinic and to assure that his

appointment is rescheduled.”

     We disagree with Dr. Adams’s assessment and her unduly narrow

definition of the right at issue here.            As we explained in

Sorenson, “it is not necessary ... that the plaintiff point to a

previous case that differs only trivially from his case,” but

rather that the cited precedent be “materially similar.”15 Contrary

     13
          245 F.3d 447, 460 (5th Cir. 2001).
     14
       134 F.3d 325, 330 (5th Cir. 1998) (emphasis in original)
(quoting Pierce v. Smith, 117 F.3d 866, 882 (5th Cir. 1997)).
     15
        Sorenson, 134 F.3d at 330 n.11 (5th Cir. 1998) (emphasis in
original) (quoting Pierce v. Smith, 117 F.3d 866, 882 (5th Cir.
1997)).

                                    8
to   Dr.   Adams’s   suggestion,     the   Supreme    Court’s     most    recent

articulation    of   what   it    means    for   a   right   to   be   “clearly

established” —— which articulation we subsequently adopted16 ——

confirms that the exact fact pattern of the case under review need

not be found in prior case law.17

      In that case —— Hope v. Pelzer, a post-Upshur County case

which the dissent here does not address —— the Supreme Court

explained    that    for    a    constitutional      right   to   be     clearly

established,

      its contours “must be sufficiently clear that a
      reasonable official would understand that what he is
      doing violates that right. This is not to say that an
      official action is protected by qualified immunity unless
      the very action in question has previously been held
      unlawful ... but it is to say that in the light of pre-
      existing law the unlawfulness must be apparent.”18

      16
       See Roe v. Texas Dep’t of Protective and Regulatory Servs.,
299 F.3d 395, 408-09 (5th Cir. 2002).
      17
       Actually, Upshur County’s “specificity” language appears to
be inapplicable to the “clearly established” prong. Upshur County
discussed specificity only in the context of the second prong ——
whether the defendants’ conduct in that case was objectively
unreasonable —— which, as we discuss in Part II.C.2 infra, we
cannot reach in the instant case for lack of jurisdiction. As to
the question whether the plaintiff in Upshur County had alleged a
violation of a clearly established right, that panel explained that
an allegation that defendants “were deliberately indifferent to the
serious health needs of [plaintiff] and ... promulgated or failed
to promulgate policies that manifest their deliberate indifference
toward the serious medical needs of their detainees. ... satisfied
[plaintiffs’] burden to allege, at a high level of generality, a
constitutional violation.”    245 F.3d 447, 459 (5th Cir. 2001).
This language supports our conclusion that Hall has alleged a
violation of a clearly established right.
      18
       536 U.S. 730, 739 (2002) (emphasis added) (internal citation
omitted)(quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)).

                                       9
In   Hope the    Court   further    clarified   that,   in   general,   prior

precedent must give state officials “reasonable warning” that a

particular course of conduct violates a constitutional right, and

cited precedent indicating that “general statements of the law are

not inherently incapable of giving fair and clear warning.”19            The

Hope Court specifically noted that “officials can still be on

notice that their conduct violates established law even in novel

factual circumstances.”20 The Court noted further that, previously,

in United States v. Lanier,21 it had rejected a requirement that

prior case law be “fundamentally similar.”

      In fact, the Hope Court’s discussion of “clearly established”

constitutional     rights   casts    serious    doubt   on   the   continued

viability of the rigid standard laid down in Pierce v. Smith22 and

Thompson v. Upshur County.23        In Hope, the Supreme Court expressly

disapproved of Eleventh Circuit precedent requiring that “the facts

of previous cases be ‘materially similar’” to the situation before

the reviewing court, explaining that “[t]his rigid gloss on the

qualified immunity standard ... is not consistent with our cases.”24


      19
        Hope, 536 U.S. at 741 (emphasis added) (quoting United
States v. Lanier, 520 U.S. 259, 271 (1997).
      20
           Hope, 536 U.S. at 741.
      21
           520 U.S. 259 (1997).
      22
           117 F.3d 866 (5th Cir. 1997).
      23
           245 F.3d 447 (5th Cir. 2001).
      24
           Hope, 536 U.S. at 739 (footnote omitted).

                                      10
This is significant because Pierce, the foundation of our own rigid

standard on the “clearly established law” question, itself borrowed

that standard from Lassiter v. Alabama A&M University, Board of

Trustees25 —— a case specifically noted by the Hope Court as being

inconsistent with Supreme Court precedent.26           Thus, Hope pushes us

toward a more general description of the constitutional right at

issue both by describing a level of specificity lower than that we

have used in the past, and by undermining the case law that

originally established the more rigid standard and thereby eroding

the foundations of our precedent on this point.

      It is in this context that we must consider whether the right

at issue in the instant case was “clearly established.”           As we must

take the facts in the light most favorable to the non-movant,27 the

real question is whether a public official in charge of inmate

medical care may ignore system-wide problems —— especially when

they are repeatedly brought to her attention by another similarly

credentialed public official —— that threaten the health and safety

of   inmates,    thereby     (as   Hall    has   alleged)   knowingly,    i.e.

consciously,      pursuing     a   path     of   complete    inactivity    ——

affirmatively deciding to do nothing —— in the face of these

problems.       We must ask rhetorically whether the more general

      25
           28 F.3d 1146 (11th Cir. 1994).
      26
           See Hope, 536 U.S. at 739.
      27
           See, e.g., Colson v. Grohman, 174 F.3d 498, 506 (5th Cir.
1999).

                                      11
formulations of the Eighth Amendment right to adequate medical care

give “fair and clear warning” that such inaction is impermissible,

despite the “novel factual circumstances” of the instant case.     We

think that they do.

     In Farmer v. Brennan, the Supreme Court explained that a

prison official who “knows of and disregards an excessive risk to

inmate health or safety” demonstrates deliberate indifference and

can be held liable under the Eighth Amendment.28         This general

formulation is the baseline for these types of claims, and was

clearly established by 1997.    According to Hall’s summary judgment

evidence and reasonable inferences therefrom, Dr. Adams’s conduct

falls squarely within that framework.    Before the district court,

and again in his appellate brief, Hall alleged that (1) Dr. Adams

was repeatedly put on notice, by another physician, that the inmate

transfer referral system was “so inadequate that inmates were being

put in serious danger,” yet (2) she “refused to address” those

problems.    Any suggestion that the inmates were not being put in

serious danger raises a question of “‘evidence sufficiency,’ i.e.,

which facts a party may, or may not, be able to prove at trial,”

which is not appealable at this stage of the litigation.29




     28
          Farmer v. Brennan, 511 U.S. 825, 837 (1994).
     29
          Johnson v. Jones, 515 U.S. 304, 313 (1995).

                                  12
     Taking Hall’s allegations as true, as we must at for summary

judgment purposes,30 there is no appreciable difference between

these allegations and the general framework provided by, for

example, Farmer v. Brennan. Therefore, just as in Upshur County,

Hall has satisfied his “burden to allege, at a high level of

generality, a constitutional violation.”31     Were we to define the

right at issue as narrowly as Dr. Adams urges, we would, in effect,

be freezing the law as it exists today.      No plaintiff could ever

successfully allege a violation of a constitutional right, as long

as the violation was perpetrated in even a slightly new and unusual

way. This appears to be exactly the situation about which the Hope

Court was concerned.

     It is true that Hall must produce some evidence to support his

allegations; and evidence that is “so weak or tenuous on an

essential fact that it could not support a judgment” will not

suffice.32 It is also true that mere disagreement among the parties




     30
       See, e.g., Colston v. Barnhart, 130 F.3d 96, 98-99 (5th Cir.
1997): “The district court’s determination that fact issues were
presented that precluded summary judgment does not necessarily deny
us jurisdiction ... We can determine as a matter of law whether
Barnhart is entitled to qualified immunity after accepting all of
Colston’s factual allegations as true.” (emphasis added) (internal
citation omitted).
     31
          Thompson v. Upshur County, 245 F.3d 447, 459 (5th Cir.
2001).
     32
          Alton v. Tex. A&M Univ., 168 F.3d 196, 199 (5th Cir. 1999).

                                  13
as to the facts will not prevent summary judgment.33       In the instant

case, however, Hall has carried his burden on this point.             The

summary judgment evidence produced at trial demonstrates that (1)

Dr. Kovacs produced monthly reports that documented, inter alia,

transfer and referral system problems that negatively affected

patient care, (2) Dr. Kovacs personally discussed these problems

with Dr. Adams on at least one occasion, and (3) Dr. Kovacs

complained on more than one occasion, to Dr. Adams as well as other

officials, that Dr. Adams was continuing to do nothing about these

systemic    problems   and   that   inmate   care   was   being   severely

undermined as a result.34      Indeed doing nothing in the face of

express knowledge of a deleterious situation is quintessential

deliberate indifference.

     We note in passing that many of the problems highlighted by

Dr. Kovacs would appear (to a layperson, at least) to be serious

enough to affect patient care significantly. Additionally, in a

letter to Dr. Rochelle McKinney, a copy of which was sent to Dr.

Adams, Dr. Kovacs “admit[ted] to a great deal of frustration trying

     33
          See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48
(1986).
     34
       In more than one monthly report, Dr. Kovacs complained that
“no one seems to care enough to want to help. Only solution seems
to be even more prayer.” In a letter to Dr. Adams, Dr. Kovacs
asserted that “[w]henever I ask for your help it is ignored,” and
he repeated that allegation in a letter to Dr. Rochelle McKinney
(to which Dr. Adams was carbon-copied): “[w]henever I ask ... Dr.
Adams ... for help ... there is no response, .... I am not
unwilling to accept more work in the pursuit of adequate
healthcare.”

                                    14
to get adequate and timely care for [his] patients,” which clearly

implies that the care he was able to give at that point was

inadequate.       Although this is not the appropriate time to assess

the strength of Hall’s factual allegations, we mention this in the

context of whether the right to medical care (as that right is

implicated here) was “clearly established”; that is, whether the

risks that Dr. Adams ignored can fairly be said to have been

“excessive.”       In the instant case, Hart has produced summary

judgment evidence that adequately alleges an excessive risk.               At

least, this is a factual question to be decided at trial.35

2.   Was Dr. Adams’s conduct objectively unreasonable?

     Dr. Adams also says that she took “some steps” to combat the

problems highlighted by Dr. Kovacs, and that this fact alone

precludes a finding of deliberate indifference.36              Furthermore,

contends    Dr.    Adams,   her   assertions   on   remedial    action    are

“undisputed” by Hall.       This second statement is flatly inaccurate.

Hall has always insisted that Dr. Adams did nothing to address the

problems detailed by Dr. Kovacs; and, as we have indicated, there

is summary judgment evidence that supports his contention.               This

dispute is genuine and the fact disputed is certainly material.

     35
          See note 29, supra, and accompanying text.
     36
       See, e.g., Southard v. Texas Bd. of Crim. Justice, 114 F.3d
539, 554 (5th Cir. 1997) (discussing why a defendant could
successfully assert qualified immunity, we noted that he “did not
simply ignore the complaints .... Instead, [he] took some steps
.... Even if those steps were ‘ineffectual,’ they do not
demonstrate deliberate indifference.”).

                                     15
Furthermore, many of the actions that Dr. Adams contends she took

could not have been in response to Dr. Kovacs’s complaints, which

are the foundation of the instant suit.      For example, Dr. Adams

argues that authoring a 1996 report and requiring the monthly

status reports involved in this case are indicators of her response

to the problems identified by Dr. Kovacs.   But, the 1996 report was

written more than a year before the events giving rise to this

lawsuit and six months before Dr. Kovacs became acting Medical

Director.    Disregarding for a moment that, at oral argument, Hall

contested Dr. Adams’s assertion that she “required” them, Dr.

Kovacs’s monthly reports were the very means by which he informed

Dr. Adams of the problems at issue.      Thus, neither action could

have been in response to Dr. Kovacs’s complaints and could not

affect the substance of Hall’s allegations.

     As the parties have produced conflicting summary judgment

evidence on what actions Dr. Adams did or did not take in response

to the problems highlighted by Dr. Kovacs, a genuine question of

fact exists here. We have no jurisdiction to consider such genuine

disputes at this stage of the proceedings.    As noted, we may only

review denials of summary judgment “to the extent that [a denial]

turns on an issue of law.”37   As regards this facet of Dr. Adams’s

appeal —— that is, whether her conduct was objectively unreasonable

—— the district court’s decision does not “concern only application


     37
          Mitchell v. Forsyth, 472 U.S. 511, 530 (1985).

                                  16
of established legal principles ... to a given (for purposes of

appeal) set of facts.”38     Instead, the parties disagree about what,

exactly, the     defendant   did.     Clearly,      this   is   an    underlying

“genuine     issue[]   of     material     fact,”    which      precludes    our

consideration of this point.39

                             III.    Conclusion

     Because we conclude that (1) Hall has alleged a violation of

a   clearly    established    constitutional        right,      and    (2)   the

determination     whether    Dr.    Adams’s   actions      were      objectively

unreasonable turns on genuinely disputed questions of material

fact, thereby depriving us of jurisdiction to consider that part of

the appeal, this appeal is

DISMISSED.




     38
          Cantu v. Rocha, 77 F.3d 795, 802 (5th Cir. 1996) (emphasis
added).
     39
       Bazan v. Hidalgo County, 246 F.3d 481, 490 (5th Cir. 2001).
Compare Hart v. O’Brien, 127 F.3d 424, 436 (5th Cir.
1997)(explaining that because “[t]he parties did not disagree over
whether the officials had engaged in [the] conduct,” the court
could consider whether that conduct was unreasonable as a matter of
law.)

                                      17
W. Eugene Davis, Circuit Judge, dissenting.



     Because I believe Dr. Adams is entitled to qualified immunity

as a matter of law, I dissent.

                                        I.

     This case boils down to a disagreement between Dr. Kovacs, the

acting   Medical   Director      of    the   Wynne   Unit   where    Hall   was

incarcerated (and whose testimony plaintiff relies on) and the

defendant, Dr. Adams, the Regional Medical Director, who was in

charge of medical care for inmates incarcerated in prisons in a

multi-county region including the Wynne unit. When an x-ray of

Hall’s     lungs   showed   an        abnormality    that   needed    further

investigation, Kovacs got permission from Dr. Adams to refer Hall

to a medical specialist at the medical unit located at the Estelle

Unit in Galveston.    Arrangements were made to transfer Hall to the

Estelle Unit for this medical examination and Hall refused the

referral and signed a form acknowledging this refusal.                 When a

tumor developed several years later and Hall died, his survivor

complains that the defendant is responsible for administering a

system which permitted Hall to fall through the cracks so that

further consideration was not given to a follow-up referral.

     It is true that Dr. Kovacs complained long and loud to Dr.

Adams about many features of prison medical care offered to the

inmates.    The only complaint that is relevant to this case is his

argument that a better tracking system (preferably computerized)
should have been put in place to track appointments and make sure

that an inmate who missed an appointment would not get lost in the

system and assure that the necessary follow-up action could be

taken.

      Dr.    Adams       did    not    ignore       Dr.    Kovacs’s       complaint      and

recommendation for an improved tracking system.                              The summary

judgment record reflects that she responded to his complaint by

making it clear that she believed the most efficient and effective

system was for the physician at the local prison unit to maintain

control     over     tracking       missed    appointments.          In    light    of   the

correspondence between Drs. Kovacs and Adams in the record, Hall’s

statement in his affidavit that Dr. Adams ignored Dr. Kovacs’s

complaint about an improved computerized tracking system apparently

meant      that    Dr.     Adams      did     not     comply     with      Dr.     Kovacs’s

recommendation.

      The plaintiff complains about a number of other deficiencies

in   the    prison       medical    system     such       as   the   deplorable     living

conditions in the medical unit in Galveston where Hall was to be

transferred        for    his      referral        examination.           Apparently     the

substandard living conditions in the Estelle Unit, as compared to

the Wynne Unit, are the reason Hall declined the transfer and the

referral examination. Dr. Adams, as Regional Medical Director, had

no control over the prison conditions at the Estelle Unit in

Galveston and the majority does not find otherwise.

                                             II.

                                              19
                                         A.

      First, Hall’s summary judgment evidence fails to establish any

nexus between the allegedly flawed policy and his injury.                          The

tracking system that was in place worked.               Dr. Kovacs initiated the

process when he made the clinical decision to refer Hall for the CT

scan. Dr. Adams approved the CAT scan referral.                  When Hall refused

the   referral,     TDCJ      policy   provided   for     physician       review   to

determine whether further action was indicated. Under that policy,

it was up to the local unit physician to make a clinical decision

whether or not to reschedule an appointment. Lloyd Ashberger, a

physician’s assistant on Dr. Kovacs’s staff was given Hall’s chart

on December 5, 1997, the day after Hall refused the referral on

December    4.     Mr.     Ashberger     noted    in    Hall’s    chart    that     no

appointment      would   be    rescheduled     until     approved    by    the   unit

physician   consistent         with    TDCJ   policy.      He    recommended       the

alternative of repeating the x-ray on Hall’s next clinic visit in

lieu of the CT scan.           A repeat x-ray was made approximately one

year later and no change was observed in the nodule and no referral

was recommended by the radiologist.              So Hall’s case did not fall

though the cracks.         His refusal to accept the referral was called

to the attention of the Wynne Unit medical staff the very next day

and the staff exercised their judgment about the appropriate action

to take.

      Also, the record reveals that it was not uncommon for Hall to

refuse a referral to Galveston for medical evaluation.                           From

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October 1993 to August 2001, Hall was referred to Galveston seven

times for various complaints and he refused to go on the last five

referrals.   On the June 7, 2001 referral, Hall refused to go for a

pulmonary evaluation even after he was counseled and urged to go

following a determination that he had a five centimeter density in

his right lung and was coughing up blood. Accordingly, a reasonable

fact   finder   could   not   infer    that   Hall   would   have   kept   an

appointment in 1997 or 1998 when he had no symptoms and when x-ray

findings were much less significant.           Thus, the alleged flawed

policy did not cause Hall to go untreated or cause any right he

might have to be violated.      Thompkins v. Belt, 828 F.2d 298, 304

(5th Cir. 1987).

                                      B.

       I also disagree with my colleagues that the summary judgment

evidence reveals conduct by Dr. Adams that was unreasonable in

light of clearly established law.

       Identifying the specific conduct of the defendant that the

plaintiff complains of is critical because it is that conduct that

must be examined to determine whether the defendant’s acts were

objectively reasonable in light of clearly established law.                As

Judge Garwood stated in Thompson v. Upsur County, 245 F.3d 447 (5th

Cir. 2001), “when a defendant moves for summary judgment based on

qualified immunity, it is the plaintiff’s burden to demonstrate

that all reasonable officials similarly situated would have then

known that the alleged acts of the defendants violated the United

                                      21
States Constitution.” (Id. at 460, emphasis added).                         As stated

above, the conduct       of the defendant the plaintiff complains of is

Dr.   Adams’s      failure   to   comply        with   Dr.   Kovacs’s      request   to

implement an improved tracking system instead of relegating this

function to the local unit medical director.                     Thus, unless all

reasonable jail officials would recognize the unconstitutionality

of implementing a system for tracking medical appointments for

inmates under the supervision of the medical director in each

prison unit rather than putting in place a computerized system then

Dr. Adams actions were objectively reasonable.                   Given the absence

of even a single case constitutionally requiring the implementation

of any particular type of tracking system, it cannot be said that

all        reasonable    jail       officials           would     recognize          the

unconstitutionality of Dr. Adams’ actions.40



                                           C.

      Finally, Dr. Adams’s decision to track transfers on a local,

rather      than   systemwide     basis,    does       not   amount   to   deliberate

indifference toward the medical needs of inmates subject to the

system.      Dr. Adams’ communication with Dr. Kovacs clearly reflects

that she considered his proposed solution and simply disagreed with

it. In order to demonstrate deliberate indifference, “the official

must both be aware of facts from which the inference could be drawn

      40
           This precisely tracks the analysis of the court in Thompson
at 460.

                                           22
that a substantial risk of serious harm exists, and he must draw

the inference.”        Domino v. Texas Department of Criminal Justice,

239 F.3d 752, 755 (5th Cir. 2001)(quoting Farmer v. Brennan, 511

U.S. 825, 837 (1994).

       Leaving the decision to the local medical director to decide

whether    a   repeat    appointment    should    be   made    is    particularly

sensible when the inmate refuses the initial appointment.                  Under

these circumstances, a reasonable fact finder could not conclude

that Adams was unreasonable in leaving to the local medical unit

the task of discussing the prisoner’s medical condition and the

proposed diagnostic tests that might be needed.                      This is the

procedure required under written policies promulgated by the TDCJ,

which Dr. Adams was required to follow. Plaintiff does not suggest

what   other    rule     Dr.   Adams   should    promulgate     or    propose   be

promulgated that would apply universally to track appointments for

referrals      inmates    refuse.      Dr.   Adams     was    not    deliberately

indifferent because she did not agree with Dr. Kovacs that a

different system for tracking referrals would be better or more

effective than the system that was in place which required the

local unit physician to decide whether another appointment should

be made.    See also Southard v. Texas Board of Criminal Justice, 114

F.3d 539.

       For the above reasons, I respectfully dissent.




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