     Case: 15-60678   Document: 00514177445    Page: 1   Date Filed: 09/29/2017




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                 United States Court of Appeals
                                                                          Fifth Circuit
                                No. 15-60678                            FILED
                                                                September 29, 2017
                                                                   Lyle W. Cayce
JOHNNY CARL GROGAN,                                                     Clerk

       Plaintiff - Appellant

v.

PARVEEN KUMAR; RONALD WOODALL; CYNTHIA FRANKLIN;
EDUARDO DIAZ; SMCI’S NURSING STAFF,

       Defendants - Appellees




                 Appeal from the United States District Court
                   for the Southern District of Mississippi


Before WIENER, HIGGINSON, and COSTA, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge:
      Johnny Grogan, a Mississippi state prisoner, brings this pro se civil
action pursuant to 42 U.S.C. § 1983. He alleges that personnel at the South
Mississippi Correctional Institution (“SMCI”) violated his Eighth Amendment
rights by responding with deliberate indifference to his serious psychiatric
needs. Specifically, he alleges that (1) Dr. Parveen Kumar, a psychiatrist,
provided inadequate treatment for his depression; (2) Cynthia Franklin, a
mental health counselor, gave him similarly deficient care; (3) Dr. Ronald
Woodall violated Grogan’s rights while processing his administrative
grievance; and (4) Lieutenant Eduardo Diaz, Dr. Kumar, and an unidentified
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                                      No. 15-60678
set of nurses all intentionally refused to treat Grogan after his failed suicide
attempts.
       By agreement of all parties, this matter was handled by a magistrate
judge, who granted summary judgment in favor of all defendants. We vacate
the grant of summary judgment as to the claims against Kumar and the nurses
insofar as those claims arise out of Grogan’s July 2014 suicide attempt, but we
otherwise affirm. We also vacate a narrow portion of a discovery order to allow
Grogan to renew his motion for subpoenas if the case proceeds to trial.
                                             I
       Grogan has a documented history of mental illness. 1 Before being
incarcerated in June 2007, he had been diagnosed with, for example,
“[d]epression” and “[s]uicidal [i]deation.” Between June 2007 and September
2013, he was housed in the East Mississippi Correctional Facility, where he
received “psychiatric treatment, care, and medication” of which he does not
complain. This suit challenges only the adequacy of the care he received after
his transfer to SMCI on September 25, 2013.
       Much of Grogan’s complaint attacks SMCI’s general policies regarding
mental health. He alleges, for example, that SMCI “does not have an around
the clock, on-site psychiatrist.” He says SMCI has “[only] two counselors
employed [there] for the whole 3,000-something inmates,” with wait times for
appointments reaching up to one week. He complains that SMCI fails to “train
[its] correctional staff to deal with mentally ill prisoners,” and that “the
correctional staff will laugh at you and make fun of you when you inform them




       1  The facts that follow are drawn from Grogan’s verified complaint; amended verified
complaint of February 2, 2015 (to the extent the magistrate judge granted Grogan leave to
file); the documents attached thereto; and Grogan’s sworn testimony at the magistrate
judge’s initial screening hearing.
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                                 No. 15-60678
[you’re] having problems mentally.” And he alleges that SMCI “fail[s] to
separate severely mentally ill inmates from the mentally healthy.”
      Grogan    further   contends   that   he   received    “professional[ly] . . .
negl[igent]” care from defendant Kumar (a psychiatrist). According to Grogan,
Kumar “neglected his job as a professional” by failing to conduct a mental
health screening when Grogan arrived at SMCI; by not meeting with him until
eighteen days later; and by “not see[ing] what was wrong” even after their
appointment. He also faults Kumar for refusing to consider Grogan’s written
description of his mental illness and for providing Grogan with what he
considers insufficient one-on-one attention. Grogan agrees, however, that
Kumar accurately diagnosed him with depression, prescribed him appropriate
medication, and saw him periodically throughout the following year.
      Grogan levies similar charges at defendant Franklin (a mental health
counselor). He alleges that Franklin “has not been professional with her care”
because she refused to document Grogan’s difficulties sleeping and because she
once stated that she “d[id] not want to see [Grogan] [because] [t]here’s nothing
wrong with him.” In September 2013, Grogan voiced his complaints about
Kumar and Franklin in a grievance he submitted through the prison’s
administrative remedy program (“ARP”). Defendant Woodall later denied the
grievance.
      The remainder of Grogan’s complaint alleges defendants’ indifference to
his two attempted suicides. His first attempt lasted “[from] January 3 to
January 12, 2014.” He alleges that he “cut [his] arms, throat, and stomach”;
“went [five] days without eating or drinking anything”; and “was [put] on
suicide watch.” Even then, Grogan says, Kumar “still never evaluated [him] to
see what was truly wrong.” “All he would ask is ‘do you want to stay on suicide
watch or do you want off.’” Grogan says Kumar “never checked to see how the
situation should have truly been handled,” thus effecting a “gross departure[]
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                                  No. 15-60678
from professional standards in treatment.” That said, Grogan agrees that his
wounds were only “superficial,” as no sharp objects were available to him.
      On July 4, 2014, Grogan again attempted suicide, this time by
overdosing medication. For two days, he “was la[id] out on the floor, not able
to eat, drink, [or] walk, and barely able to talk.” He “could only wake up, vomit,
dry heave, then pass out.” Grogan says he “received no help” during this period.
One nurse who passed by said she “didn’t care” and refused to help. Other
nurses allegedly refused to help as well. The “tower officer” eventually realized
something was wrong and “called medical.” The only person to respond,
however, was defendant Diaz. Diaz allegedly “observed [Grogan] on the floor
about to die” but still “would not help.” Diaz merely told him to “[s]leep it off.”
      As Grogan’s complaint acknowledges, his account of his July 4–5 suicide
attempt contradicts his medical records. Those records reflect a July 5 visit
from Kumar, with Kumar reporting that Grogan was “doing well.” Grogan
contends that this record is false and that no such visit occurred. In support,
he provides his own sworn testimony. He also attaches to his complaint
declarations from six other inmates, each of whom observed Grogan in pain on
the floor for two days, and each of whom attests that no one provided help.
Grogan consistently has maintained that “the cameras . . . and the logbook will
show [that] [he] was l[eft] on that floor . . . unattended.”
      On July 19, 2014, Grogan filed a second ARP grievance. Although the
new grievance reiterated his earlier concerns, it also described his recent
suicide attempts. The investigator deemed the grievance duplicative of the first
grievance and declined to process it. He reminded Grogan that his first
grievance had already been denied and advised him that, “if [he] w[as] not
satisfied,” he could “seek judicial review.” Grogan then filed this action.




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                                 No. 15-60678
                                       II
      Grogan appeals the magistrate judge’s grant of summary judgment for
all defendants. Summary judgment is appropriate only “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). Our review is de
novo. Robinson v. Orient Marine Co., 505 F.3d 364, 365–66 (5th Cir. 2007).
                                       A
      Grogan’s claim against Diaz arrives in an unfortunate posture. As noted
above, Grogan filed two ARP grievances: one in September 2013 (which did not
mention Diaz) and one in July 2014 (which did). The latter grievance was
attached to Grogan’s judicial complaint. Nonetheless, Diaz’s motion for
summary judgment cited only the September 2013 grievance and used that as
an (incomplete) basis to argue that Grogan failed to exhaust his administrative
remedies under 42 U.S.C. § 1997e(a). Grogan’s opposition noted Diaz’s
omission and attached the July 2014 grievance—but, due to a copying error,
attached only the first page. Then, relying on Grogan’s summary judgment
filing, the magistrate judge granted summary judgment for Diaz on the
(mistaken) ground that the July 2014 grievance “makes no mention of the July
4th incident or Defendant Diaz’s alleged involvement.” Had Grogan attached
the second page to his opposition—or had he expressly cited the complete copy
already in the record—the magistrate judge would have known that the
premise of his ruling was factually incorrect.
      On appeal, Grogan explains the mistake and asks for a reversal. Diaz
responds that the missing page of Grogan’s grievance cannot be considered
now. On the present record, we agree with Diaz. “Although on summary
judgment the record is reviewed de novo,” this court typically “will not consider
evidence or arguments that were not presented to the district court for its
consideration in ruling on the motion.” Skotak v. Tenneco Resins, Inc., 953
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                                  No. 15-60678
F.2d 909, 915 (5th Cir. 1992); see also, e.g., Fed. R. Civ. P. 56(c)(3); Am. Family
Life Assur. Co. of Columbus v. Biles, 714 F.3d 887, 896–97 (5th Cir. 2013);
Hernandez v. Yellow Transp., Inc., 670 F.3d 644, 651 (5th Cir. 2012). Grogan
does not persuade us to depart from that rule here.
      We therefore affirm the grant of summary judgment in Diaz’s favor. We
note, however, that the magistrate judge dismissed the Diaz claim without
prejudice, so Grogan may be able to refile and present the complete record to
the court.
                                        B
      The magistrate judge also granted summary judgment in favor of
Kumar, Franklin, and the unidentified nurses (collectively, “the medical
defendants”). He found no genuine material disputes on the issue of deliberate
indifference. Prison officials violate the Eighth Amendment’s ban on cruel and
unusual punishment when they show deliberate indifference to an inmate’s
serious medical needs. Estelle v. Gamble, 429 U.S. 97, 104–05 (1976). An
official is deliberately indifferent if he “knows that [the] inmate[] face[s] 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);
see also Reeves v. Collins, 27 F.3d 174, 176–77 (5th Cir. 1994). Here, Grogan
alleged deliberate indifference on at least three different theories, which we
address separately below.
                                        1
      Grogan’s broadest theory of deliberate indifference expands beyond the
particular defendants and finds constitutional error in SMCI’s mental health
policies themselves. He contends, for example, that the Constitution requires
“around the clock, on-site psychiatrists” and wait times of less than one week.
The magistrate judge determined that these aspirational theories failed to


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                                    No. 15-60678
state a deliberate indifference claim against “any of these [defendants], or for
that matter against any prison staff.” 2 We see no error in that conclusion.
      Both here and before the magistrate judge, Grogan has failed to argue
that the challenged policies resulted in any objective risk of serious harm to
him. Nor has he argued that the policies were implemented in knowing
disregard of such a risk. Instead, he argues essentially that SMCI’s mental
health care standards fall below its general policy statements and its job
descriptions for its employees. But, even if true, this showing cannot itself
establish deliberate indifference. See Farmer, 511 U.S. at 847 (deliberate
indifference requires both objectively serious harm and subjective awareness
of that harm). Nor does it constitute a violation of due process. Myers v.
Klevenhagen, 97 F.3d 91, 94 (5th Cir. 1996). In short, because Grogan fails to
show that his psychiatric policy preferences are embodied in constitutional
standards, his preferences do not state a claim for a constitutional violation.
                                           2
      Grogan also claims that the general course of his treatment by Kumar
and Franklin amounted to deliberate indifference. The magistrate judge
rejected this claim as belied by Grogan’s medical records. Again, we agree.
      “Because ‘an inadvertent failure to provide adequate medical care’ does
not violate the Eighth Amendment,” Thompkins v. Belt, 828 F.2d 298, 303 (5th
Cir. 1987) (quoting Estelle, 429 U.S. at 105), “[a] showing of deliberate
indifference requires the prisoner to submit evidence that prison officials
‘refused to treat him, ignored his complaints, intentionally treated him
incorrectly, or engaged in any similar conduct that would clearly evince a



      2 In another order issued the same day, the magistrate judge denied Grogan leave to
amend his complaint to add the Mississippi Department of Corrections and the
Superintendent of SMCI as defendants on grounds of futility. Grogan does not appeal that
order.
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                                  No. 15-60678
wanton disregard for any serious medical needs,’” Gobert v. Caldwell, 463
F.3d 339, 346 (5th Cir. 2006) (quoting Domino v. Tex. Dep’t of Criminal Justice,
239 F.3d 752, 756 (5th Cir. 2001)). Mere “negligence” does not constitute
deliberate indifference, “nor does a prisoner’s disagreement with his medical
treatment, absent exceptional circumstances.” Id.
      Here, Grogan’s medical records serve as undisputed evidence that
Kumar and Franklin made good faith efforts to treat Grogan’s mental illness
in the course of their frequent appointments with him. According to the
records, Kumar examined Grogan over one dozen times between October 13,
2013 and October 29, 2014—more than once per month on average. Each
meeting resulted in a documented treatment plan that addressed, among other
things, whether to modify Grogan’s medication schedule. Grogan also met with
mental health counselors Cynthia Franklin and Kimberly Allen around ten
times during the same time period. Regular nurse visits, sick calls, and medical
clinics filled the remaining gaps.
      To be sure, Grogan disputes whether one of Kumar’s psychiatric
appointments occurred (as discussed below). But as to the other documented
psychiatrist appointments and documented counseling sessions, Grogan
adduces no contrary evidence. His opposition before the magistrate judge
asserted only that Kumar gave him insufficiently individualized attention and
that Franklin “argue[d]” with him about his diagnosis. Such disagreements do
not reach the level of deliberate indifference. See, e.g., Gobert, 463 F.3d at 346.
Summary judgment on this point was warranted.
                                        3
      Grogan lastly alleges that Kumar and the unnamed nurse defendants
were deliberately indifferent to his July 2014 suicide attempt. Before the
magistrate judge, the medical defendants’ summary judgment brief failed to
address these allegations. Grogan’s opposition, on the other hand, argued that
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                                      No. 15-60678
the disputed facts surrounding the July 2014 attempt precluded summary
judgment. The magistrate judge rejected Grogan’s argument, assigned the
medical records dispositive weight, and granted summary judgment for
defendants on the issue. We now vacate that determination. 3
       A genuine dispute exists as to whether Grogan attempted suicide on July
4–5, 2014, and, if he did, whether Kumar and the defendant nurses responded
in a reasonable manner. True, the medical records state that Kumar examined
Grogan on July 5 and wrote that he was “doing well,” was “calm,” and was
without “new issues or concerns.” But that evidence is disputed. Grogan
testifies (in the form of his verified pleadings and sworn testimony) that on
July 5, 2014, he in fact was not doing well, and he in fact did not meet with
Kumar. To the contrary, he attests that he spent July 4 and 5 “la[id] out on the
floor, not able to eat, drink, [or] walk, and barely able to talk,” and ignored by
prison staff. His summary judgment opposition brief also attached and cited
declarations from six inmates, made on personal knowledge, attesting to the
same. Declarations and verified pleadings that are dated and made on penalty
of perjury (as these are) constitute “[]adequate summary judgment evidence.”
Stewart v. Guzman, 555 F. App’x 425, 431 (5th Cir. 2014) (per curiam)
(unpublished) (citing 28 U.S.C. § 1746). It is not the court’s role on summary
judgment to weigh competing evidence or make credibility determinations.




       3  We do not consider Grogan’s allegations regarding his January 2014 suicide attempt.
Although Grogan pressed the July attempt before the magistrate judge as a reason to deny
the medical defendants’ motion for summary judgment, he made no such argument regarding
his January attempt. He thereby waived the argument. See, e.g., FDIC v. Mijalis, 15 F.3d
1314, 1327 (5th Cir. 1994) (“[I]f a litigant desires to preserve an argument for appeal, the
litigant must press and not merely intimate the argument during the proceedings before the
district court.”).
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                                    No. 15-60678
Thus, because a reasonable jury could credit either the medical records or
Grogan’s conflicting account, we hold that this factual dispute is genuine. 4
      We therefore vacate the grant of summary judgment in favor of Kumar
and the unidentified nurses, but only as to Grogan’s deliberate indifference
claim arising from the July 2014 suicide attempt. We otherwise affirm the
grant of summary judgment for the medical defendants.
                                           C
      The last defendant, Woodall, is the ARP adjudicator who rejected
Grogan’s September 2013 grievance. Grogan says Woodall “interfer[ed] with
[his] mental health treatment” by (1) rejecting his grievance without an
adequate investigation and (2) doing so without the proper psychiatric
credentials. (To Grogan, Woodall is “nothing more than a medical doctor.”) In
opposition before the magistrate judge, Grogan further argued that Woodall’s
investigation violated internal policies and procedures.
      The magistrate judge correctly determined that these allegations fail to
state a claim. There is no evidence or allegation that Woodall’s conduct placed
Grogan in substantial risk of serious harm, much less evidence that Woodall
did so with subjective awareness of the risk. See Farmer, 511 U.S. at 847. Nor
has Grogan adduced evidence of a causal link between Woodall and the
allegedly indifferent response to the July 2014 suicide attempt. See
Thompkins, 828 F.2d at 304 (causal connection required for § 1983 supervisory
liability). Finally, it is well established that prisoners have no due process
rights in the inmate grievance process. See, e.g., Geiger v. Jowers, 404 F.3d 371,
374 (5th Cir. 2005). We therefore affirm the magistrate judge’s entry of
summary judgment on this claim.



      4 We also do not consider whether Grogan faced a “substantial risk of serious harm”
during his July 2014 suicide attempt—an issue no party has briefed.
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                                       No. 15-60678
                                             III
       In addition to summary judgment, Grogan appeals two of the magistrate
judge’s discovery orders. 5 Because we vacate and remand limited aspects of the
court’s grant of summary judgment (discussed above), we consider these
discovery issues as well. We review discovery orders only for abuse of
discretion. Wiwa v. Royal Dutch Petroleum Co., 392 F.3d 812, 817 (5th Cir.
2004).
                                              A
       First, Grogan appeals the denial of his motions for a mental examination
of himself pursuant to Rule 35 of the Federal Rules of Civil Procedure. Rule 35
permits the district court, upon a showing of good cause, to “order a party
whose mental . . . condition . . . is in controversy to submit to a . . . mental
examination by a suitably licensed or certified examiner.” Fed. R. Civ. P. 35(a).
The “in controversy” and “good cause” requirements demand more than “mere
relevance.” Schlagenhauf v. Holder, 379 U.S. 104, 118 (1964). Rather, they
“require an affirmative showing by the movant that each condition as to which
the examination is sought is really and genuinely in controversy and that good
cause exists for ordering each particular examination.” Id. District judges serve
as “discriminating” gatekeepers as to both requirements. Id.
       Grogan contends that he needed a mental examination to (1)
demonstrate the seriousness of his mental illness and (2) dispute Kumar’s
contention that Grogan was in stable condition on July 5, 2014. As to the first
point, the remaining defendants concede that the extent of Grogan’s mental
illness is generally undisputed. As to the second point, a mental examination
in 2015 or later bears only weak relevance—let alone “real[]” and “genuine[]”


       5 Grogan’s notice of appeal of the magistrate judge’s final order also permits us to
review “the prior orders leading up to it.” United States ex rel. Bias v. Tangipahoa Par. Sch.
Bd., 816 F.3d 315, 328 (5th Cir. 2016) (internal quotation mark omitted).
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                                 No. 15-60678
relevance—to the condition of Grogan’s mental health on a specific date in
2014. And, thirdly, the magistrate judge found that Grogan’s purpose was in
effect “to use Rule 35 to provide himself with an expert witness.” That is not
good cause. See 8B Charles Alan Wright & Arthur R. Miller, Federal Practice
and Procedure § 2231 (3d ed. updated Apr. 2017) (“Under Rule 35, the court
has no authority to appoint a medical expert to examine plaintiff on plaintiff’s
motion. . . . No civil litigant, even an indigent one, has a right under the rule
to an award of costs for a medical examination, or to appointment of an expert
commanded to perform such an examination without being paid.”). Grogan has
not shown that the magistrate judge abused his discretion here.
                                       B
      Second, Grogan appeals the denial of his four motions to issue subpoenas
under Rule 45 of the Federal Rules of Civil Procedure. Grogan sought
subpoenas for a variety of items, not all of which are relevant in light of our
disposition of this appeal. We limit our discussion here to Grogan’s request to
subpoena SMCI Superintendent Raymond Byrd for camera footage that might
have documented Grogan’s suicide attempt in early July 2014.
      Grogan made clear from the outset of this lawsuit that he considers
camera footage from July 4 and 5, 2014, to be essential to his case. At the
court’s initial screening hearing in December 2014, Grogan and the magistrate
judge had the following exchange:
            THE COURT: Okay. Do we understand—you
            understand the [discovery] procedure we are going to
            use about this?

            MR. GROGAN: If I needed to subpoena in the camera
            footage from that zone, would I do that now or do I
            have to file it in a motion?

            THE COURT: You can also ask for subpoenas and
            such or production—that would be a production of
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                                No. 15-60678
            documents. You can ask for that, and they will respond
            to that. Do you understand?

            MR. GROGAN: Yes, Your Honor.

            THE COURT: I don’t know if [the defendants]
            themselves would have any of those documents at all
            or the footage. I doubt they would.

      On December 29, 2014, Grogan propounded a request for production to
defendants pursuant to Rule 34. He sought, among other things, “any and all
camera footage from Unit 8 A zone on July 4th and July 5th, 2014.” Before
receiving a response, he moved the magistrate judge to subpoena Byrd under
Rule 45 for essentially the same footage. Two weeks later, the medical
defendants responded that they had no such video in their possession.
      In June 2015, the magistrate judge denied Grogan’s motion to subpoena
the camera footage. The order cited a single ground for the denial: that,
although Rule 45 is the appropriate vehicle for compelling the production of
evidence from non-parties, the “information [Grogan] seeks should be within
the possession, custody, or control of the Defendants.” This rationale is
inconsistent with the court’s earlier statement at the hearing. It also was not
true. Given the alleged importance of the video footage to Grogan’s remaining
claim, and given the correspondingly high risk of undue prejudice if Grogan
cannot obtain it, we conclude that this denial constituted abuse of discretion.
In the event that this case proceeds to trial, Grogan should be permitted to
renew his motion for this subpoena. We accordingly vacate the magistrate
judge’s order denying Grogan’s motion for subpoenas in this narrow respect.
                                      IV
      As a final matter, Grogan asserts that the magistrate judge “obstructed
justice by avoiding facts that w[ere] in his face.” This argument is frivolous,
and we reject it out of hand.
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                               No. 15-60678
                                     V
      In sum: We affirm the grant of summary judgment with respect to Diaz,
Woodall, and Franklin. We vacate the grant of summary judgment with respect
to Kumar and the defendant nurses, but only to the extent Grogan’s claims
arise from his alleged suicide attempt in July 2014. We affirm the denial of
Grogan’s Rule 35 motions and vacate the denial of Grogan’s Rule 45 motion to
subpoena videos relevant to the July 2014 suicide attempt.
     This case is remanded for further proceedings consistent with this
opinion.




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