     Case: 12-31229      Document: 00512546041         Page: 1    Date Filed: 02/27/2014




              IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT


                                      No. 12-31229
                                                                     United States Court of Appeals
                                                                              Fifth Circuit

                                                                            FILED
                                                                     February 27, 2014
CALVIN RODRIGUE,
                                                                       Lyle W. Cayce
              Plaintiff - Appellee                                          Clerk


v.

NURSE D. GRAYSON; LIEUTENANT BRAD FIFE,

              Defendants – Appellants


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 3:09-CV-985



Before BENAVIDES, CLEMENT, and GRAVES, Circuit Judges.
PER CURIAM: *
       Nurse Dana Grayson and Lieutenant Brad Fife appeal a district court’s
judgment in favor of Calvin Rodrigue in his civil rights action against them,
brought under 42 U.S.C. § 1983. After a bench trial, the district court held
that Grayson and Fife violated Rodrigue’s Eighth Amendment rights through
their deliberate indifference to his medical condition, which led to serious
injury when his ruptured appendix went untreated.                  The court held that

       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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neither Grayson nor Fife was entitled to qualified immunity and awarded
Rodrigue general compensatory damages, court costs, and interest.                        We
AFFIRM.


                           FACTS AND PROCEEDINGS
       The relevant facts occurred while Rodrigue was incarcerated in the
Morehouse Parish, Louisiana Detention Center (“Morehouse Detention
Center”). On May 31, 2008, Rodrigue filed a written request for emergency
medical services, complaining of abdominal pain. That evening, Nurse Dana
Grayson (a licensed practical nurse employed at Morehouse Detention Center)
provided him medicine to relieve his complaints of vomiting. The following
day, Rodrigue submitted a sick call request with similar complaints. Nurse
Grayson saw Rodrigue the next day. 1 She provided him with medication to
relieve his nausea and instructed him to return at the next sick call on June 4
if his symptoms persisted. He submitted another sick call request on June 3,
and saw Grayson on June 4.               Because his written request specifically
mentioned constipation, Grayson gave Rodrigue milk of magnesia. On June 5,
Rodrigue submitted another sick call request to Grayson and a separate
inmate services request form to Lt. Brad Fife. 2 He stated in both requests that
his complaints persisted. In his inmate services request, he stated that he
believed the proper treatment to be an enema. On June 6, Grayson provided
him an enema, which resulted in a successful bowel movement within thirty
minutes.


       1 Nurse Grayson was the only medical care provider employed by the Morehouse
Detention Center. She conducted regular sick calls three days a week and responded to
emergency requests as needed.
       2 Lt. Fife was the security officer for the Morehouse Detention Center. As part of his

duties, Fife responded to requests for services such as Rodrigue’s June 5 inmate services
request. He had the authority to transfer inmates to a hospital for treatment.
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      On June 10, without having made further sick calls or inmate services
requests since June 6, Rodrigue submitted a second emergency medical
services request. Nurse Grayson saw him that morning and authorized his
transport to E.A. Conway Medical Center. At the hospital, Rodrigue was
diagnosed with a ruptured or perforated appendix, which was removed that
day. Because sepsis had set in, Rodrigue underwent an extended recovery and
two additional surgeries before being released on August 6, 2008.
      Rodrigue filed his civil rights complaint on June 15, 2009. In addition to
Grayson and Fife, he sued the Morehouse Detention Center, Warden Robert
Tappin, Assistant Warden Issaic Brown, Sergeant Clacks, an unnamed
insurance company, an unnamed physician, and the Sheriff of Morehouse
Parish. On June 24, 2009, and again on October 5, 2009, Rodrigue amended
his complaint, dismissing his claims against Morehouse Detention Center and
the unnamed doctor. Rodrigue filed his complaints pro se, and never asserted
claims other than the § 1983 claim based on violations of his Eighth
Amendment rights.
      On September 8, 2010, the magistrate judge issued a Report and
Recommendation that defendants’ motion for summary judgment should be
granted. She based her conclusion on her finding that “plaintiff has failed to
introduce any evidence to establish that the named defendants were aware of
a serious risk of harm to the plaintiff, or that they subjectively intended that
any harm occur.”     Although defendants raised qualified immunity as an
affirmative defense in their motion for summary judgment, the court felt that
“analysis of the qualified immunity defense [wa]s unnecessary” because it had
already “determined that the individual defendants did not violate plaintiffs’
constitutional rights.”   After Rodrigue filed objections to the magistrate’s
report, the district judge dismissed his claims against the unnamed insurance


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company on December 20, 2010, but denied defendants’ motion for summary
judgment. The court found that Rodrigue raised genuine issues of material
fact as to whether the defendants were deliberately indifferent to his medical
needs.   The district judge also rejected defendants’ qualified immunity
argument, stating that “[i]t is clearly established under Supreme Court
precedent both that Rodrigue had a federal right to medical care and that
Defendants could not be deliberately indifferent to that care.”        He later
transferred the case to another district judge, who presided over the case
through trial in February 2012.
      On September 28, 2012—about seven months after the bench trial—the
district court entered a Memorandum Ruling dismissing Rodrigue’s claims
against Morehouse Parish, Tubbs, Tapp, Brown, and Clacks, but holding Nurse
Grayson and Lt. Fife liable for violating Rodrigue’s Eighth Amendment right
to be free from cruel and unusual punishment.
      As to Grayson, the court found that “despite persistent complaints of
extreme abdominal pain and bilious vomiting for over a week, a prisoner was
simply denied access to a medical professional competent to diagnose and treat
his condition,” and held “that this conduct rose to the level of a wanton
disregard for Rodrigue’s serious medical needs” in violation of the Eighth
Amendment. As to Fife, it held that he “exhibited deliberate indifference to
Rodrigue’s medical condition when he ignored Rodrigue’s inmate request of
June 5, 2008.” The court denied Grayson and Fife qualified immunity and held
them jointly and severally liable to Rodrigue in the amount of $280,000 in
general compensatory damages, $10,000 in court costs, and interest as allowed
by law. Grayson and Fife appeal.




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                            STANDARD OF REVIEW
      “Following a bench trial, we review the district court’s conclusions of law
de novo and its factual findings for clear error.” DeMoss v. Crain, 636 F.3d 145,
149 (5th Cir. 2011).       Clear error occurs “when, notwithstanding there is
evidence to support it, the reviewing court upon examination of the entire
evidence is left with the definite and firm conviction that a mistake has been
committed.” Justiss Oil Co. v. Kerr-McGee Ref. Corp., 75 F.3d 1057, 1062 (5th
Cir. 1996). “Where there are two permissible views of the evidence, the fact-
finder’s choice between them cannot be clearly erroneous.” Id.
      We review the district court’s ruling on qualified immunity de novo. See
Terry v. Hubert, 609 F.3d 757, 761 (5th Cir. 2010) (“[W]e may review de novo
the materiality of disputed facts to the qualified immunity determination.”).
This inquiry includes the scope of clearly established law and the objective
reasonableness of the defendant’s conduct. Flores v. City of Palacios, 381 F.3d
391, 394 (5th Cir. 2004); Thompson v. Upshur Cnty., 245 F.3d 447, 456 (5th
Cir. 2001).


                                  DISCUSSION
      Grayson and Fife raise three issues on appeal. They argue that the
district court (1) abused its discretion by failing to apply numerous stipulations
entered into between the parties prior to trial; (2) erred in reaching its factual
conclusions; and (3) erred in holding that appellants were not entitled to
qualified immunity. We address each challenge in turn.


I. Parties’ Stipulations
      As their first issue on appeal, Grayson and Fife argue that the district
court found deliberate indifference only by ignoring and “eviscerating”


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stipulations entered into between the parties before trial.             Because
“[s]tipulations entered into between parties are to be disregarded only if
accepting them would be ‘manifestly unjust or if the evidence contrary to the
stipulation is substantial,’” Smith v. Blackburn, 785 F.3d 545, 549 (5th Cir.
1986), appellants contend that the district court abused its discretion by
reaching a conclusion they argue is foreclosed by the stipulations set forth in
the pre-trial order. We hold that the district court did not abuse its discretion
because it neither ignored nor eviscerated any of the facts to which the parties
stipulated.
      The Eighth Amendment provides that “[e]xcessive bail shall not be
required, nor excessive fines imposed, nor cruel and unusual punishments
inflicted.” U.S. Const. amend. VIII. “A prison official violates the Eighth
Amendment’s prohibition against cruel and unusual punishment when his
conduct demonstrates deliberate indifference to a prisoner’s serious medical
needs, constituting an unnecessary and wanton infliction of pain.” Easter v.
Powell, 467 F.3d 459, 463 (5th Cir. 2006) (internal quotation marks and
citation omitted). Actions by state actors constitute deliberate indifference
towards a prisoner’s medical needs when they “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.”   Gobert v. Caldwell, 463 F.3d 339, 346 (5th Cir. 2006).        But “an
inadvertent failure to provide adequate medical care” does not rise to the level
of “unnecessary and wanton infliction of pain” that is “repugnant to the
conscience of mankind.” Estelle v. Gamble, 429 U.S. 97, 105–06 (1976).
      At issue are eighteen stipulations incorporated into a pre-trial order that
appellants argue foreclose a finding of deliberate indifference. Relevant to our
analysis are stipulations 8–15 and 18, which describe Rodrigue’s various


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requests for treatment to Grayson and Fife (including his description of
symptoms), Grayson’s treatment of Rodrigue, and one occasion when Fife
escorted Rodrigue to the infirmary during the relevant time period.
      We hold that despite appellants’ assertions to the contrary, the district
court did not ignore the parties’ pre-trial stipulations. As demonstrated in its
opinion, the district court accepted the parties’ stipulations regarding the
progress of Rodrigue’s illness and treatment. It accepted that Grayson saw
and treated Rodrigue after each of his requests for medical attention, and did
not disregard the stipulation evidencing Fife’s escorting Rodrigue to the
infirmary.
      The district court’s factual findings that appellants take issue with are
not inconsistent with the parties’ stipulations. For example, the finding that
Grayson was not credible when she testified that Rodrigue did not appear to
be sick does not contradict any stipulated fact describing the inmate’s requests
and her treatment. The district court found that from “the plain wording of
his emergency requests and sick calls, and from Dr. Sasaki’s [Rodrigue’s
expert] medical opinion of the seriousness, symptoms, and progression of
Rodrigue’s illness that Rodrigue complained of pain to LPN Grayson and that
he was obviously in serious pain from May 31, 2008 to June 10, 2008.”
Similarly, although the stipulations do not state that Rodrigue complained of
vomiting, abdominal pain, constipation, and anorexia, the district court was
within its right to find that, based on the testimony before it, Rodrigue did in
fact complain of these symptoms, albeit verbally, to Grayson.
      We hold that the district court did not commit reversible error by
ignoring the parties’ pre-trial stipulations. A comparison of the facts found in
the district court’s opinion and what parties stipulated to before trial reveals
no error.


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II. District Court’s Factual Conclusions
      Appellants argue that the district court committed manifest error in how
it weighed competing evidence. They argue:
      The plaintiff and the defendants presented markedly different
      evidence as to Rodrigue’s appearance, symptoms, complaints and
      medical attention prior to his transfer to a hospital where he
      underwent surgery for a perforated appendix. In reaching her
      factual conclusions, the district judge generally accepted all of the
      testimony presented by plaintiff and his witnesses, and rejected or
      simply ignored not only the testimony of the defendants’ witnesses
      but also the documentary evidence of Rodrigue’s treatment at the
      Detention Center for his abdominal complaints.

Appellants’ Br. 1–2. As the above excerpt demonstrates, appellants merely ask
the court to second guess the district court’s factual findings. We hold that the
district court did not commit manifest error in reaching its factual conclusions.
      Appellants     take   exception   to   the    district    court’s    credibility
determinations as to Grayson, Fife, and defendants’ expert witness, Dr.
Demaree Inglese. The district court found Grayson lacked credibility based on
her inconsistent and “rehearsed” answers, as well as her lack of remorse. It
questioned Inglese’s impartiality based on the fact that he had worked at a
correctional facility. The court discredited Fife’s testimony because “Lt. Fife
testified shamelessly that he had no memory of receiving Rodrigue’s inmate
request and that he received ‘100’s’ of these requests daily, a figure he later
modified to twenty-five or thirty.”
      We hold that appellants fail to demonstrate clear error in the district
court’s conclusions. That a reasonable trier of fact could have weighed the
evidence differently is not enough for an appellate court to overturn a district
court’s findings. See Justiss, 75 F.3d at 1062 (“Where there are two permissible
views of the evidence, the fact-finder’s choice between them cannot be clearly
erroneous.”). Consistent with the great deference given to trial courts’ fact-

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finding, we hold that the district court did not commit manifest error in
reaching its factual conclusions. See Strauch v. Gates Rubber Co., 879 F.2d
1282, 1285 (5th Cir. 1989) (“An appellate Court is in no position to weigh
conflicting evidence and inferences or to determine the credibility of witnesses;
that function is within the province of the finder of fact.”).
      Because the district court did not impermissibly ignore or disregard the
parties’ pre-trial stipulations or commit reversible error in reaching its factual
conclusions, we affirm the district court’s holding that appellants violated
Rodrigue’s rights under the Eighth Amendment.


III. Qualified Immunity
      Appellants challenge the district court’s denial of qualified immunity.
Based on the district court’s factual findings that Grayson and Fife knew of
Rodrigue’s serious medical condition but ignored his requests for medical
attention despite this knowledge, we hold that appellants are not entitled to
qualified immunity.      Although case law protects medical providers for
misdiagnoses and for treatments that can only be shown to have been deficient
through hindsight, the district court explicitly found that both appellants had
subjective knowledge that Rodrigue’s medical condition carried significant
risks of serious injury. Accepting these facts, no reasonable person would have
thought it constitutionally permissible to deny him the medical care he
required.


      A. Legal Standard
      State actors sued in their individual capacity under § 1983 are entitled
to qualified immunity “insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person


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would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). “Qualified
immunity gives government officials breathing room to make reasonable but
mistaken judgments about open legal questions.” Ashcroft v. al-Kidd, 131 S.
Ct. 2074, 2085 (2011). “When properly applied, it protects all but the plainly
incompetent or those who knowingly violate the law.” Id. (internal quotations
marks omitted). After the individual defendants invoked qualified immunity,
the burden shifted to Rodrigue to demonstrate the inapplicability of the
defense. Crostley v. Lamar Cnty., 717 F.3d 410, 422 (5th Cir. 2013). We apply
a two-pronged test in evaluating the applicability of the defense. The plaintiff
“[f]irst . . . must claim that the defendants committed a constitutional violation
under current law. Second, he must claim that the defendants’ actions were
objectively unreasonable in light of the law that was clearly established at the
time of the actions complained of.” Id.
      Because we affirm the district court’s holding that defendants committed
a constitutional violation, see supra Sections I-II, we turn to the second prong
of the qualified immunity test—whether the rights allegedly violated were
clearly established at the time Grayson and Fife acted.


      B. Clearly Established
      When applying the second prong of the qualified immunity test, we
examine whether the right’s “contours . . . are sufficiently clear that every
reasonable official would have understood that what he is doing violates that
right.” al-Kidd, 131 S. Ct. at 2083 (internal alterations and quotation marks
omitted). “To answer that question in the affirmative, we must be able to point
to controlling authority—or a robust consensus of persuasive authority—that
defines the contours of the right in question with a high degree of
particularity.” Morgan v. Swanson, 659 F.3d 359, 371–72 (5th Cir. 2011) (en


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banc) (internal quotation marks and footnote omitted). While “[w]e do not
require a case directly on point . . . existing precedent must have placed the
statutory or constitutional question beyond debate.” al-Kidd, 131 S. Ct. at
2083. But “officials can still be on notice that their conduct violates established
law even in novel factual circumstances. . . . [T]he salient question . . . is
whether the state of the law . . . gave respondents fair warning that their
alleged treatment . . . was unconstitutional.” Hope v. Pelzer, 536 U.S. 730, 741
(2002); see also Austin v. Johnson, 328 F.3d 204, 210 (5th Cir. 2003) (“[O]fficers
need only have ‘fair warning’ that their conduct is unlawful.”).
      Appellants contend that the district court erred in denying them
qualified immunity because the judge conducted her inquiry into clearly
established law “at too general a level.” They argue that “no reported opinion
of this or any other federal circuit court . . . has ever equated similar acts or
omissions to deliberate indifference.” Indeed, numerous authorities support
the contrary proposition: “It is indisputable that an incorrect diagnosis by
prison medical personnel does not suffice to state a claim for deliberate
indifference.” Domino v. Tex. Dep’t of Crim. Justice, 239 F.3d 752, 756 (5th
Cir. 2001); see also Estelle, 429 U.S. at 105–06 (“in the medical context, an
inadvertent failure to provide adequate medical care cannot be said to
constitute ‘an unnecessary and wanton infliction of pain’ or to be ‘repugnant to
the conscience of mankind’”).
      We hold that Rodrigue’s rights were clearly established. The district
court’s factual findings distinguish this case from others that held that a mere
misdiagnosis does not rise to the level of deliberate indifference. As the district
court explained in distinguishing Domino, Grayson and Fife knew of a serious
medical condition and simply ignored it: “The prisoner [in Domino] had been
treated for all of his complaints until he chose to discontinue the


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treatment. . . . In the instant case, the continuous and intense nature of
Rodrigue’s complaints of vomiting and abdominal pain were simply ignored by
LPN Grayson.”
      Officials can be on notice that their conduct violates a constitutional
right even in “novel factual circumstances.” See Hope, 536 U.S. at 741. Here,
Grayson and Fife knew of a prisoner’s serious medical needs yet ignored his
requests for treatment. The district court’s factual findings—that appellants
had subjective knowledge of Rodrigue’s dire condition—remove this case from
the realm of negligence or gross negligence, and render inapposite cases
dealing with honest but inadequate medical care. Any reasonable person in
appellants’ position would have known that ignoring Rodrigue’s complaints in
light of his medical situation would be a violation of his rights under the Eighth
Amendment. See Gobert, 463 F.3d at 346 (deliberate indifference when state
actors “refused to treat [prisoner], 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”).
      We affirm the district court’s holding that appellants were not entitled
to qualified immunity.


                                CONCLUSION
      For the foregoing reasons, we AFFIRM the district court’s judgment in
its entirety.




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