     Case: 13-60082      Document: 00512570400         Page: 1    Date Filed: 03/24/2014




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

                                                                                   FILED
                                      No. 13-60082
                                                                               March 24, 2014
                                                                               Lyle W. Cayce
                                                                                    Clerk
THE ESTATE OF RANDY LYNN CHENEY, by and through George R.
Cheney, Administrator

                                                 Plaintiff - Appellant
v.

WANDA COLLIER, individually; THOMAS G. TAYLOR, individually,

                                                 Defendants - Appellees




                   Appeal from the United States District Court
                     for the Northern District of Mississippi
                             USDC No. 4:09-CV-111



Before DAVIS, GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
       While in the custody of the Mississippi Department of Corrections,
Randy Lynn Cheney died from a severe viral syndrome that ultimately
resulted in cardiac and respiratory arrest. The Plaintiff, Cheney’s father, filed
suit pursuant to 42 U.S.C. § 1983, asserting that the prison officials and
medical staff who were responsible for treating Cheney were deliberately


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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indifferent to his medical needs and thus violated his Eighth Amendment right
to be free from cruel and unusual punishment. See Estelle v. Gamble, 429 U.S.
97, 104 (1976) (holding that “deliberate indifference to serious medical needs
of prisoners constitutes the ‘unnecessary and wanton infliction of pain,’
proscribed by the Eighth Amendment” (quoting Gregg v. Georgia, 428 U.S. 153,
173 (1976))).
       Specifically, the Plaintiff alleges that Collier, 1 a registered nurse
employed by the Mississippi Department of Corrections, who was working at
the Bolivar County Correctional Facility (“Bolivar CF”) while Cheney was
confined there, failed to provide medical treatment to Cheney despite his
repeated requests to be seen and Collier’s purported knowledge of his
deteriorating and serious condition.              The district court granted summary
judgment in Collier’s favor on the basis of qualified immunity. Because the
Plaintiff has not demonstrated a genuine issue of material fact that Collier was
deliberately indifferent to a substantial risk to Cheney’s health or safety, we
AFFIRM the district court’s summary judgment for Collier.
                                               I.
       This court reviews a grant of summary judgment de novo, applying the
same standard as the district court. See, e.g., TIG Ins. Co. v. Sedgwick James
of Wash., 276 F.3d 754, 759 (5th Cir. 2002). Summary judgment may not be
granted when there are genuine issues of material facts in dispute, such that
a reasonable jury could find for the non-moving party. See Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986); Sossamon v. Lone Star State of Tex., 560
F.3d 316, 326 (5th Cir. 2009). Generally, in summary judgment proceedings,

       1Although the complaint was initially filed against several prison officials, doctors, a
privately owned medical corporation, and the county of Bolivar, Mississippi, all of those
claims were either resolved in settlement proceedings, or dismissed below and not challenged
on appeal. Accordingly, this appeal involves only the Plaintiff’s claim against Collier, in her
individual capacity.
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“[t]he moving party bears the burden of establishing that there are no genuine
issues of material fact.”          Norwegian Bulk Transp. A/S v. Int’l Marine
Terminals P’ship, 520 F.3d 409, 412 (5th Cir. 2008).                    When, however, a
defendant’s summary-judgment motion is premised upon qualified immunity,
the burden shifts to the plaintiff to raise facts that dispute the defendant’s
assertion of qualified immunity. 2 See, e.g., Michalik v. Hermann, 422 F.3d 252,
262 (5th Cir. 2005). To prevail, a plaintiff must present evidence that, viewed
in the light most favorable to him, presents a genuine issue of material fact
that (1) the defendant’s conduct amounts to a violation of the plaintiff’s
constitutional rights; and (2) the defendant’s actions were “objectively
unreasonable in light of clearly established law at the time of the conduct in
question.” Cantrell v. City of Murphy, 666 F.3d 911, 922 (5th Cir. 2012).
                                               II.
       In Farmer v. Brennan, the Supreme Court announced that in order to
establish an Eighth Amendment claim under a theory of deliberate
indifference, the plaintiff must show that “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.” 511 U.S. 825, 837 (1994).
The Farmer Court explained that this “subjective recklessness” standard does
not require the plaintiff to “show that a prison official acted or failed to act
believing that harm actually would befall an inmate; it is enough that the
official acted or failed to act despite his knowledge of a substantial risk of
serious harm.” Id. at 842; see also Domino v. Tex. Dep’t. of Criminal Justice,

       2 Although a summary-judgment motion premised upon qualified immunity shifts the
burden to the plaintiff, this does not alter the requirement that courts view all facts and make
all reasonable inferences in the light most favorable to the plaintiff. Brown v. Callahan, 623
F.3d 249, 253 (5th Cir. 2010) (“The plaintiff bears the burden of negating qualified immunity,
but all inferences are drawn in his favor.”).
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239 F.3d 752, 755 (5th Cir. 2001). To meet this standard, a plaintiff must
establish more than mere negligence, unreasonable response, or medical
malpractice. Gobert v. Caldwell, 463 F.3d 339, 346 (5th Cir. 2006).
      Circumstantial evidence may sufficiently establish the subjective
recklessness standard because “[w]e may infer the existence of this subjective
state of mind from the fact that the risk of harm is obvious.” Farmer, 511 U.S.
at 842. Therefore, we have found deliberate indifference when the plaintiff
alleges facts of an apparent or obvious risk to a prisoner’s health, supporting
an inference that the official had “actual awareness” of a serious medical need.
See, e.g., United States v. Gonzales, 436 F.3d 560, 573-74 (5th Cir. 2006)
(upholding a finding of deliberate indifference when evidence established that
officers failed to seek medical assistance for a detainee who was lying on the
ground with a broken neck, “foaming at the mouth,” begging for help, and
yelling “take me to a hospital”); Austin v. Johnson, 328 F.3d 204, 210 (5th Cir.
2003) (inferring deliberate indifference when a minor was unconscious and
vomiting for two hours before officials sought medical help); Harris v.
Hegmann, 198 F.3d 153, 159-60 (5th Cir. 1999) (finding deliberate indifference
when prison officials ignored repeated requests for immediate, emergency care
and ignored multiple reports of “excruciating pain” caused by the dislocation
of a prisoner’s jaw).
                                        III.
      The Plaintiff has not demonstrated that a genuine dispute of material
fact exists from which a reasonable jury could conclude that Collier “acted or
failed to act despite [her] knowledge of a substantial risk of serious harm.”
Farmer, 511 U.S. at 842 (emphasis added). Viewing the evidence in the light
most favorable to the Plaintiff, Cheney—even on the morning of August 29,
2007, fewer than twenty-four hours before his death—complained of the flu


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and reported and exhibited flu-like symptoms including paleness, body fatigue,
chills, lack of appetite, and one or two instances of vomiting. The Plaintiff
additionally submitted evidence that Collier failed to respond to two or three
sick-call requests that reported these flu-like symptoms and that Collier told
another prisoner to stop “worrying” her about Cheney’s condition, when he
expressed concern. Nonetheless, the Plaintiff has not presented evidence that
disputes that Cheney’s visible and self-reported symptoms were consistent
with a severe cold or flu. Until Collier took Cheney’s vitals on the morning of
August 29, 2007, and determined that they were dangerously abnormal—at
which point she sought emergency treatment—the record indicates that Collier
was only aware of symptoms consistent with the flu. The Plaintiff thus has
not established that Collier failed to act despite knowledge of a “substantial
risk of serious harm.” Id. (emphasis added).
      Accordingly, the Plaintiff has not demonstrated a genuine issue of
material fact from which a reasonable jury could conclude that Collier’s actions
or inactions violated Cheney’s Eighth Amendment rights. Collier’s knowledge
of and inattention to symptoms consistent with the flu or a bad cold do not rise
to the level of an “obvious” or apparent risk to Cheney’s health sufficient to
infer that she acted with deliberate indifference. See Gonzales, 436 F.3d at
573-74. Although the facts may suggest that Collier acted negligently, that
alone is insufficient to establish a cognizable claim under the Eighth
Amendment. See Gobert, 463 F.3d at 346 (“Unsuccessful medical treatment,
acts of negligence, or medical malpractice do not constitute deliberate
indifference, nor does a prisoner’s disagreement with his medical treatment,
absent exceptional circumstances.”). The Plaintiff therefore did not establish




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that Collier 3—who requested emergency services for Cheney once she
determined that his vital signs were abnormal—acted with deliberate
indifference. Compare Easter v. Powell, 467 F.3d 459 (5th Cir. 2006) (finding
that officials were deliberately indifferent by failing to provide medical care
when prison medical staff were actually aware of the detainee’s heart
condition, and the detainee presented obvious signs of serious cardiac health
risks).
       For the foregoing reasons, we AFFIRM the district court’s summary
judgment for Collier.




       3  The allegations regarding the medical care Cheney received from other medical
personnel in the hours preceding his death are quite troubling and may have formed the basis
of a viable deliberate-indifference claim against other prison or medical staff—many of whom
have settled with the Plaintiff—who treated Cheney after Collier alerted her supervisor that
Cheney’s vitals were abnormal. While concerning, these allegations do not affect our analysis
of Cheney’s claim of deliberate indifference against Collier.
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