     Case: 12-10332       Document: 00512174455         Page: 1     Date Filed: 03/14/2013




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

                                                                            FILED
                                                                          March 14, 2013
                                     No. 12-10332
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

HYMON A. WALKER,

                                                  Plaintiff-Appellant

v.

JOHN L. HOWARD; BERNARDO DELUNA,

                                                  Defendants-Appellees


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 7:08-CV-208


Before JOLLY, BENAVIDES, and DENNIS, Circuit Judges
PER CURIAM:*
       Hymon A. Walker, Texas prisoner # 1014857, appeals the dismissal on
summary judgment of his 42 U.S.C. § 1983 suit alleging that the defendants
violated his Eighth Amendment rights by delaying his medical treatment for
asthma. The district court held that the defendants were entitled to qualified
immunity and, in the alternative, that there existed no genuine issue of material
fact with regard to Walker’s claims.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-10332

      This court reviews the grant of a motion for summary judgment de novo,
applying the same standards as the district court. Dillon v. Rogers, 596 F.3d
260, 266 (5th Cir. 2010). “The court shall grant summary judgment 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). “In the
context of a party asserting immunity in a summary judgment motion, the
moving party is not required to meet its summary judgment burden for a claim
of immunity.” Hathaway v. Bazany, 507 F.3d 312, 319 (5th Cir. 2007) (internal
quotation marks, brackets, and citation omitted). Rather, a government official
need only plead qualified immunity in good faith, which then shifts the burden
to the plaintiff. Id. When a defendant pleads qualified immunity as a defense,
the court must determine whether the facts alleged by the plaintiff set forth a
violation of a constitutional right and whether the constitutional right was
clearly established at the time of the alleged misconduct. Ontiveros v. City of
Rosenberg, 564 F.3d 379, 382 (5th Cir. 2009).
      A “prison official may be held liable under the Eighth Amendment for
denying humane conditions of confinement only if he knows that inmates face
a substantial risk of serious harm and disregards that risk by failing to take
reasonable measures to abate it.” Farmer v. Brennan, 511 U.S. 825, 847 (1994).
To show deliberate indifference to his medical needs, “the plaintiff must
establish that the jail officials were actually aware of the risk [of serious harm],
yet consciously disregarded it.” Lawson v. Dallas County, 286 F.3d 257, 262 (5th
Cir. 2002).
      As Walker’s suit is premised on the assertion that the defendants declined
to contact medical staff because they disbelieved his asthma-related complaints,
he cannot show that the defendants were “actually aware” that his health was
at risk. See id. Although he argues that the defendants should have recognized
the risk and contacted medical staff pursuant to applicable policies, “an official’s
failure to alleviate a significant risk that he should have perceived but did not,

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                                    No. 12-10332

while no cause for commendation, cannot under our cases be condemned as the
infliction of punishment.” Olabisiomotosho v. City of Houston, 185 F.3d 521, 528
(5th Cir. 1999). Walker fails to show a violation of his Eighth Amendment rights
and, thus, fails to show that the district court erred by holding that the
defendants were entitled to qualified immunity. Ontiveros, 564 F.3d at 382.
      Walker argues that the district court held that the defendants were
entitled to qualified immunity in their official capacities, although he sued them
in their individual capacities as well. The defense of qualified immunity applies
only to suits against defendants in their individual capacities. See Kentucky v.
Graham, 473 U.S. 159, 166-67 (1985) (holding that officials in their individual
capacities “may . . . be able to assert personal immunity defenses,” including
qualified immunity, that are not available in official-capacity suits); Sanders-
Burns v. City of Plano, 594 F.3d 366, 371 (5th Cir. 2010) (stating that qualified
immunity is “a defense that is only relevant to individual capacity claims”). By
contrast, “a suit against a state official in his . . . official capacity is not a suit
against the official but rather is a suit against the official’s office,” and thus is
“no different from a suit against the State itself.” Will v. Michigan Dept. of State
Police, 491 U.S. 58, 71 (1989). Section 1983 does not provide for a remedy
against the state; such an action is barred by the Eleventh Amendment. Id. at
66. Although the district court did not mention whether the defendants were
being sued in their official or individual capacities, by holding that they were
entitled to qualified immunity, the district court necessarily addressed their
liability in terms of their individual capacities.
      AFFIRMED.




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