                                                               United States Court of Appeals
                                                                        Fifth Circuit
                                                                     F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                         August 11, 2003

                        __________________________               Charles R. Fulbruge III
                                                                         Clerk
                               No. 02-41175
                        __________________________


KEITH ALBERT SHAFER,
                                                        Plaintiff-Appellee,

                                  versus

EDUARDO CARMONA, Warden; ET AL,
                                                                 Defendants,

EDUARDO CARMONA, Warden,
                                                        Defendant-Appellant.

       ___________________________________________________

           Appeal from the United States District Court
                for the Southern District of Texas
                         (No. M-99-CV-323)
       ___________________________________________________

Before WIENER, CLEMENT, and PRADO, Circuit Judges.

PER CURIAM:*

     Defendant-Appellant      Eduardo    Carmona   (“Warden     Carmona”      or

“warden”), the warden of the Segovia Unit of the Texas Department

of Criminal Justice, Institutional Division, appeals the district

court’s   denial   of   his   motion    for   summary    judgment   based     on

qualified immunity.      We reverse.

                        I. FACTS AND PROCEEDINGS

     In this 42 U.S.C. § 1983 case, Plaintiff-Appellee Keith Albert




     * 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this opinion should not be published and is not precedent except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.
Shafer (“Shafer”) alleges that Warden Carmona was deliberately

indifferent to his serious medical needs.      Shafer sustained a

fractured wrist when he was assaulted by another inmate during what

Shafer describes as a racially-motivated altercation.        He was

immediately transported to a local hospital, where his wrist was

splinted.1   On a standard “patient post-care instruction” form,

Shafer’s treating physician recommended that he “call and make an

appointment with [his] family physician within one day[].”   Shafer

alleges that the emergency room doctor also recommended surgery “at

that time” but that unnamed “prison officials” insisted he return

to the Segovia Unit.

     On his return to the Segovia Unit, Shafer was examined by

prison medical personnel, and a prison doctor prescribed pain

medication, apparently without examining Shafer.     A physician’s

assistant examined Shafer again the next day, and he was treated by

prison medical staff again two days later.   Five days after that,

he complained of pain and was examined by a prison doctor who

recommended immediate transfer for surgery. Shafer was transferred

to the University of Texas Medical Branch and underwent orthopedic

surgery the following day —— a total of nine days after the

original incident.


     1
       The record does not conclusively establish how Shafer’s arm
was immobilized (i.e., in a cast or splint). Shafer has maintained
that the arm was merely placed in a splint, but his medical records
alternately reference a “splint” and a “cast.” This minor factual
discrepancy has no bearing on the result of this appeal.

                                2
     In the meantime, prison personnel expressed concern that

Shafer was not safe in his current unit, as he would not be able to

defend himself if involved in another physical conflict.         A memo

(or email) sent to another prison official over the warden’s name,2

explained that Shafer had been attacked by another prisoner and had

“received preliminary care at our local free world hospital and is

pending a transfer to a TDCJ-ID Medical Facility for follow up

care.”   The memo recommended that Shafer “not be returned to his

unit upon completion of his medical treatment.”

     Shafer filed suit, pro se, alleging, inter alia, that the

nine-day delay in treatment evidences Warden Carmona’s “deliberate

indifference” to Shafer’s serious medical needs.        According to

Shafer, as a result of his injuries he has suffered physical pain

and mental anguish, endured multiple surgeries, and lost the use of

his left wrist.   The matter was referred to a magistrate judge who

appointed counsel for Shafer.         The warden filed a motion for

summary judgment, arguing, in pertinent part, that he was entitled

to qualified immunity because he had no personal involvement in

Shafer’s treatment and because Shafer had failed to establish an

Eighth Amendment violation.

     After   briefing,   the   magistrate   judge   issued   a   report

recommending that the motion be granted with respect to all of

     2
        The memorandum indicates that it was sent by an
administrative assistant, under the “authority” of Warden Carmona.
For purposes of this appeal, we assume the memorandum was authored
by Warden Carmona, as Shafer maintains.

                                  3
Shafer’s claims, with the exception of the deliberate indifference

claim against Warden Carmona.            Over the warden’s objection, the

district court adopted the recommendation of the magistrate judge

and denied Warden Carmona’s motion for summary judgment on Shafer’s

deliberate indifference claim.           Warden Carmona timely appealed.

                           II. LAW & ANALYSIS

A.   Jurisdiction

     A    district   court’s     order       denying       qualified   immunity   is

immediately appealable if based on a conclusion of law.3                      We have

interlocutory jurisdiction to “take, as given, the facts that the

district    court    assumed    when   it      denied       summary    judgment   and

determine    whether    these    facts       state     a    claim     under   clearly

established law.”4

B.   Standard of Review

     We review a grant of summary judgment de novo, applying the

same standard as the district court.5                      A motion for summary

judgment is properly granted only if there is no genuine issue as

to any material fact.6          An issue is material if its resolution



     3
         Palmer v. Johnson, 193 F.3d 346, 350 (5th Cir. 1999).
     4
       Nerren v. Livingston Police Dep’t, 86 F.3d 469, 472 (5th
Cir. 1996)(internal quotations omitted).
     5
       Morris v. Covan World Wide Moving, Inc., 144 F.3d 377, 380
(5th Cir. 1998).
     6
       Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317,
322 (1986).

                                         4
could affect the outcome of the action.7           In deciding whether a

fact issue has been created, we view the facts and the inferences

to be drawn therefrom in the light most favorable to the nonmoving

party.8     The nonmoving party, however, cannot satisfy his summary

judgment burden with conclusional allegations, unsubstantiated

assertions, or only a scintilla of evidence.9

C.   Qualified Immunity

     Qualified immunity “shields a state official from personal

liability for damages under 42 U.S.C. § 1983 when the official’s

exercise of discretionary authority results in a violation of an

individual’s federal constitutional or statutory rights, unless at

the time and under the circumstances of the challenged conduct all

reasonable officials would have realized that it was proscribed by

the federal law on which the suit is founded.”10            The bifurcated

test for qualified immunity requires examination of (1) whether the

plaintiff     has   alleged   a   violation   of   a   clearly   established

constitutional right; and (2) if so, whether the defendant’s conduct


     7
          Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
     8
       See Olabisiomotosho v. City of Houston, 185 F.3d 521, 525
(5th Cir. 1999).
     9
       Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.
1994) (en banc).
     10
        Palmer, 193 F.3d at 351 (internal quotations omitted); see
also   Austin   v.  Johnson,   328   F.3d  204,   207  (5th   Cir.
2003)(explaining that “[q]ualified immunity is an entitlement not
to stand trial or face the other burdens of litigation”)(quoting
Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)).

                                      5
was objectively unreasonable in the light of the clearly established

law at the time of the incident.11

     In this case, Shafer alleges that he was denied adequate

medical care in violation of the Eighth Amendment.12           To establish

this threshold Eighth Amendment violation, Shafer must demonstrate

that Warden Carmona was “deliberately indifferent to his serious

medical needs.”13     Deliberate indifference is “an extremely high

standard”14 that encompasses “only unnecessary and wanton infliction

of pain repugnant to the conscience of mankind.”15                Negligent

medical care does not give rise to a § 1983 claim, and a delay in

medical care is actionable only “if there has been deliberate

indifference, which results in substantial harm.”16

     The    Supreme   Court   has   adopted   a   subjective   standard   for

deliberate indifference.        “[A] prison official cannot be found


     11
       Domino v. Texas Dep’t of Criminal Justice, 239 F.3d 752, 755
(5th Cir. 2001).
     12
        See Stewart v. Murphy, 174 F.3d 530, 533 (5th Cir.
1999)(explaining that the “cruel and unusual punishments” clause of
the Eighth Amendment “has been interpreted to mandate the provision
of medical care to [prisoners]”).
     13
        McCormick v. Stalder, 105 F.3d 1059, 1061 (5th Cir.
1997)(citing Estelle v. Gamble, 429 U.S. 97, 100 (1976)).
“[D]eliberate indifference to serious medical needs of prisoners
constitutes the ‘unnecessary and wanton infliction of pain
proscribed by the Eighth Amendment.” Estelle, 429 U.S. at 104
(internal citation omitted).
     14
          Domino, 239 F.3d at 756.
     15
          McCormick, 105 F.3d at 1061.
     16
          Mendoza v. Lynaugh, 989 F.2d 191, 195 (5th Cir. 1993).

                                      6
liable under the Eighth Amendment...unless the official knows of and

disregards an excessive risk to inmate health or safety; the

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

be drawn that a substantial risk of serious harm exists, and he must

also draw the inference.”17       In short, deliberate indifference

requires a “showing that the official was subjectively aware of the

risk”18 of serious harm.

     This “extremely high,” subjective standard has not been met in

the instant case. The magistrate judge’s recommendation that Warden

Carmona’s    motion   for   summary   judgment   be   denied   was   based

exclusively on the memo, purportedly sent by the warden, relating

that Shafer had been attacked, had been treated at a local hospital,

and was awaiting transfer to the medical branch.         From this memo,

the magistrate judge deduced that the warden was aware that Shafer

had been instructed to make a doctor’s appointment within one day

but nevertheless delayed treatment for nine days.

     Whether the warden knew of the emergency room doctor’s generic

directive is immaterial to our qualified immunity determination.

To prevail on his deliberate indifference claim, Shafer must “raise

genuine issues as to facts which, if true, would clearly evince the


     17
       Farmer v. Brennan, 511 U.S. 825, 837 (1994); see also Lawson
v. Dallas County, 286 F.3d 257, 262 (5th Cir. 2002)(“The deliberate
indifference standard is a subjective inquiry; the plaintiff must
establish that the jail officials were actually aware of the risk,
yet consciously disregarded it.”).
     18
          Id. at 829 (emphasis added).

                                      7
medical need in question and indicate that the denial of treatment

was   much      more   likely    than     not   to   result   in    serious   medical

consequences, and additionally that the defendant[] had sufficient

knowledge of the situation so that the denial of medical care

constituted wanton disregard”19 of his rights.                Even when we assume,

arguendo, that the warden personally authored (or even was aware of)

the memo, it establishes at most that the warden had knowledge of

(1) the original altercation; (2) Shafer’s treatment at a local

hospital; and (3) the fact that Shafer was awaiting transfer for

further treatment.        There is no record evidence indicating that the

warden knew that Shafer was in need of immediate surgery or that a

delay      in   treatment       was    likely   to     lead   to   serious    medical

consequences.

      Shafer has failed to establish a genuine issue of material fact

regarding his Eighth Amendment claim of deliberate indifference

against Warden Carmona.               He has “submitted no evidence that [the

warden has] ever refused to treat him, ignored his complaints,

intentionally treated him incorrectly, or engaged in any similar

conduct that would clearly evince a wanton disregard for any serious

medical needs.”20        Although Shafer alleges that the emergency room

doctor recommended immediate surgery and that Warden Carmona was

aware of this medical need, he points to no medical records or other

      19
        Johnson v. Treen,                 759   F.2d     1236,     1238   (5th   Cir.
1985)(emphasis added).
      20
           Johnson, 759 F.2d at 1238.

                                            8
evidence to support his contention; and our independent review of

the record reveals none. As Shafer has not demonstrated a violation

of a clearly established constitutional right, we do not reach the

issue of the objective reasonableness of Warden Carmona’s conduct

and conclude that the warden is entitled to qualified immunity.

                         III. CONCLUSION

     For the foregoing reasons, we reverse the district court’s

denial of Warden Carmona’s motion for summary judgment and remand

for entry of judgment consistent with this opinion.

REVERSED and REMANDED.




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