     Case: 16-11121      Document: 00514044324         Page: 1    Date Filed: 06/22/2017




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

                                                                                     FILED
                                                                                  June 22, 2017
                                      No. 16-11121
                                                                                  Lyle W. Cayce
                                                                                       Clerk
MISHON THOMPSON, Individually and as Representative of the Estate of
Marsele Thompson,

              Plaintiff - Appellant

v.

MARIO CAMPOS; NORMA PEREZ; DONALD COLEMAN; JAMES
CAUGHRAN; ROBERT CREAGER,

              Defendants - Appellees



                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 5:16-CV-18


Before DAVIS, JONES, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Marsele Thompson was a prisoner in a Texas Department of Criminal
Justice prison in Lubbock, Texas. On January 25, 2014, he died tragically as
a result of a twisted small intestine that became gangrenous, causing sepsis.
The prison guards responsible for him were disciplined based on an
investigation by the state into their conduct that day, but none of the appellees’



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-11121
actions were found by the state to be linked to Thompson’s death. This appeal
concerns an Eighth Amendment deliberate-indifference suit brought by his
mother, Mishon Thompson, against four prison guards and their supervisor,
Robert Creager. The district court granted summary judgment for the prison
guards and a Fed. Rule Civ. Pro. 12(c) dismissal of their supervisor.
Thompson’s mother appeals both rulings.
       The district court held that the guards were entitled to qualified
immunity because the plaintiff did not produce evidence creating a genuine
issue of material fact that any of them acted with deliberate indifference to
Thompson’s serious medical needs. While the plaintiff has the burden to
negate the officers’ assertion of qualified immunity, all inferences from the
evidence must be drawn in her favor. Brown v. Callahan, 623 F.3d 249, 253
(5th Cir. 2010). The district court erred in suggesting that only the plaintiff’s
evidence can be considered at this stage.         Standard summary judgment
procedure requires courts to review all of the record evidence, no matter which
side supplied it. Contrary to the plaintiff’s contention, we find that the prison’s
business records submitted on behalf of the guards were sufficiently
authenticated and admissible. Accordingly, we have carefully reviewed the
entire record before affirming the district court’s conclusion.
       “The Eighth Amendment prohibition against cruel and unusual
punishment forbids deliberate indifference to the serious medical needs of
prisoners.” Lawson v. Dallas Cnty., 286 F.3d 257, 262 (5th Cir. 2002). To
prevail on such a claim, a plaintiff must show that (1) the prisoner “was
exposed to a substantial risk of serious harm” and (2) “jail officials acted or
failed to act with deliberate indifference to that risk.” Id. (citing Farmer v.
Brennan, 511 U.S. 825, 834 (1994)). Eighth Amendment liability thus requires
“more than ordinary lack of due care for the prisoner’s interests or safety.”
Whitley v. Albers, 475 U.S. 312, 319 (1986).
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                                 No. 16-11121
      This renders deliberate indifference “an extremely high standard to
meet.” Domino v. Texas Dep’t of Criminal Justice, 239 F.3d 752, 755 (5th Cir.
2001). “Actions and decisions by officials that are merely inept, erroneous,
ineffective, or negligent do not amount to deliberate indifference.” Alton v.
Texas A & M Univ., 168 F.3d 196, 201 (5th Cir. 1999).             Indeed, to be
deliberately indifferent, “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 that inference.” Farmer, 511 U.S. at 837.           Thus “the
plaintiff must establish that the jail officials were actually aware of the risk,
yet consciously disregarded it.” Lawson, 286 F.3d at 262.
      Nothing in the extensive record creates a genuine issue of material fact
as to the guards’ subjective awareness that Thompson was suffering from an
ischemic small intestine with a secondary volvulus that caused his death.
Each guard provided a sworn statement attesting that he or she saw nothing
out of the ordinary in Thompson’s appearance or behavior on the day of death.
Moreover, there is no dispute that Thompson was visited by a medical
professional at 8 a.m. the day before he passed away, with brief visits by LVNs
near midnight and early morning on the day of death. Thompson did not
exhibit symptoms during any of these visits that might have created an
awareness of his suffering from immediate, serious medical needs. We note
that appellant’s counsel took no depositions to probe more deeply into the
appellees’ actions on the day of Thompson’s death. Counsel failed to supply
expert medical testimony to support a genuine issue of material fact concerning
the obviousness of any symptoms Thompson might have exhibited.
      The guards’ individual derelictions of duty are inexcusable. Their
inaction might have created a genuine issue of material fact as to deliberate
indifference had some more obvious cause of distress or death occurred, which
they might have seen or heard had they been visiting the cell every 15 minutes
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                                 No. 16-11121
as required. This court, however, is confined in our review to the factual record
and reasonable inferences drawn therefrom. The record before us does not
justify reversal of the summary judgment based on qualified immunity.
      As to the Rule 12(c) motion for judgment on the pleadings, the plaintiff’s
pleadings that Supervisor Creager “was personally involved . . . and acted with
deliberate indifference” have no supporting facts, especially in comparison
with the facts underlying plaintiff’s claims against the guards supervised by
Creager.    The barebones nature of the allegations fails to support a
constitutional claim for his deliberate indifference.
      The judgment is AFFIRMED.




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