     Case: 16-41504      Document: 00514345648         Page: 1    Date Filed: 02/12/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 16-41504                       United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
JOSE GALVAN,                                                             February 12, 2018
                                                                           Lyle W. Cayce
              Plaintiff - Appellant                                             Clerk

v.

CALHOUN COUNTY; GEORGE ALEMAN, Sheriff; RACHEL MARTINEZ,
Jail Administrator; RACHAEL CROBER, Officer,

              Defendants - Appellees




                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 6:16-CV-2


Before WIENER, ELROD, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       After prison guards allegedly delayed medical treatment for Jose
Galvan’s severe stomach pain, he brought suit under 42 U.S.C. § 1983. In
response, the defendants filed a motion to dismiss or, in the alternative, a
motion for summary judgment. The district court dismissed the claims. We
AFFIRM in part, REVERSE in part, and REMAND for further proceedings.



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-41504
              FACTUAL AND PROCEDURAL BACKGROUND
      While detained at the Calhoun County Adult Detention Center in Port
Lavaca, Texas, Jose Galvan began experiencing severe pain. Galvan had a
history of acid reflux.   On December 24, 2013, he complained about his
condition to Officer Rachael Crober, stating that his stomach was hurting so
badly that he feared something more serious was causing his pain, perhaps his
gallbladder. He asked to be taken to a hospital. Crober determined that his
condition was not life threatening, and he did not need to go to the hospital.
Crober offered Galvan some Pepto-Bismol instead, which Galvan accepted.
      The next morning, Galvan was still suffering and asked to be taken to a
hospital. Crober, after consulting with administrator Rachel Martinez, again
refused. At Galvan’s request, Crober gave Galvan a mixture of baking soda
and water to alleviate his stomach pain. Galvan filed a grievance that day,
reporting pain in his stomach and back. Galvan described the pain as so severe
that he thought he might die.
      Galvan was moved to a medical-segregation cell for closer observation on
December 26. There, he continued to ask for medical treatment. It was not
until the following day, however, that any medical professional finally
evaluated Galvan. It was then that the treating physician, Dr. McFarland,
diagnosed Galvan with acid reflux and constipation, determined that he did
not need to be hospitalized, and prescribed medication.       Galvan did not
immediately improve, and on December 30 he was taken to a hospital. There,
he was diagnosed with a urinary tract infection and was then brought back to
the detention center. The next day, he again complained of extreme pain. He
was taken to the hospital for a second time where he was diagnosed with
calculus of gallbladder with acute cholecystitis, ultimately requiring removal
of his gallbladder.


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                                  No. 16-41504
      Galvan filed a complaint, alleging that the county, the sheriff, the
captain, the jail administrator, and four officers treated his serious medical
needs with deliberate indifference. In response, the defendants filed a motion
to dismiss for failure to state a claim arguing that Galvan failed to (1) state a
claim for denial of adequate medical care; (2) allege specific conduct by
individual defendants that would constitute a constitutional deprivation; (3)
allege facts to overcome the qualified immunity defense of the sheriff, the
captain, and the officers; and (4) allege a custom, practice, or policy claim. The
defendants also moved for summary judgment in the alternative and attached
exhibits to the motion to dismiss to prove that they had not ignored Galvan’s
complaints.
      On March 4, 2016, Galvan responded to the motion to dismiss and
alternatively asked for leave to amend his complaint. Three days later, the
district court held a pre-trial conference. There, the court set an internal
review deadline of March 21. The court also entered a case management order
providing that the parties would exchange documents by March 11 and
permitting the parties to supplement their briefs by March 18.
      After the district court granted leave, Galvan filed his amended
complaint in which he dropped some of the defendants from the original suit,
leaving only the county, Sheriff Aleman, Rachel Martinez, and Officer Rachael
Crober.     The defendants supplemented their initial response, and Galvan
responded. Six months later, the district court entered a final decision in favor
of the defendants in the form of an “Opinion on Dismissal.” Galvan timely
appealed.


                                 DISCUSSION
      Galvan appeals from the dismissal. The district court held that Galvan
failed to state a claim recognized by law. It also held that the facts showed
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                                  No. 16-41504
that he received “reasonable medical attention.”         The district court also
dismissed Galvan’s custom, practice, or policy claim against the County.
Galvan has not meaningfully addressed this final issue on appeal. “When an
appellant fails to advance arguments in the body of its brief in support of an
issue it has raised on appeal, we consider such issues abandoned.” Justiss Oil
Co., Inc. v. Kerr-McGee Ref. Corp., 75 F.3d 1057, 1067 (5th Cir. 1996). Because
the only factual allegations implicating Sheriff Aleman are the facts
surrounding the custom, practice, or policy claim, which Galvan has
abandoned, we focus on the deliberate indifference claims against Defendants
Crober and Martinez.
      Galvan’s complaint alleges prison officials responded to his serious
medical needs with deliberate indifference. “The Eighth Amendment prohibits
punishment that is unnecessary and wanton infliction of pain.” Walker v.
Butler, 967 F.2d 176, 178 (5th Cir. 1992) (citing Estelle v. Gamble, 429 U.S. 97,
104 (1976)). Treating the serious medical needs of inmates with deliberate
indifference “constitutes the unnecessary and wanton infliction of pain and
states a cause of action under 42 U.S.C. § 1983.” Id. To establish a violation
of deliberate indifference, the defendant “must first prove objective exposure
to a substantial risk of serious harm. Additionally, he must show that prison
officials acted or failed to act with deliberate indifference to that risk.” Gobert
v. Caldwell, 463 F.3d 339, 345–46 (5th Cir. 2006).
       “To establish liability based on a delay in medical treatment, a plaintiff
must show deliberate indifference to serious medical needs that resulted in
substantial harm.” Alderson v. Concordia Par. Corr. Facility, 848 F.3d 415,
422 (5th Cir. 2017). A plaintiff can show deliberate indifference with evidence
that a prison official “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.” See
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Johnson v. Treen, 759 F.2d 1236, 1238 (5th Cir. 1985). The pain that an inmate
suffers during the delay caused by deliberate indifference is harm sufficient to
support an award of damages. Alderson, 848 F.3d at 422.


I.    Whether Galvan failed to state a claim recognized by law
      We address first the district court’s conclusion that Galvan failed to state
a claim recognized by law. Dismissals for failure to state a claim are reviewed
de novo. Bustos v. Martini Club Inc., 599 F.3d 458, 461 (5th Cir. 2010). A court
should dismiss a complaint for failure to state a claim when the plaintiff fails
to plead “enough facts to state a claim to relief that is plausible on its face.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially
plausible “when the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Taking well-pled factual
allegations as true, the court should “then determine whether they plausibly
give rise to an entitlement to relief.” Id. at 679.
      The district court found that after complaining of his pain, Galvan
received non-prescription remedies, then was moved to a medical-segregation
unit for observation, and then was taken to the hospital. The district court
found that the defendants “took reasonable and appropriate steps to address
his pain,” which the district court determined was not “intentional disregard
for Galvan’s medical needs.”      As a result, the district court held that his
complaint failed to state a claim upon which relief could be granted.
      We start with the point that refusing to treat a prisoner’s complaints can
give rise to Section 1983 liability. See Alderson, 848 F.3d at 422 n.8. A four-
hour delay in treatment has been considered a sufficient claim of deliberate
indifference. Easter v. Powell, 467 F.3d 459, 461–65 (5th Cir. 2006). In Easter,
we held that the plaintiff stated a claim of deliberate indifference where he
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                                  No. 16-41504
alleged that the prison nurse refused to treat him even though she knew he
was experiencing severe chest pain, he had a diagnosed heart condition, and
he lacked access to the medication prescribed to treat it.        Id. at 463–65.
Similarly, this court has found an inmate’s claim of deliberate indifference
sufficient where he alleged that after an ineffective jaw surgery, he repeatedly
complained of intense pain and made multiple urgent requests for medical
treatment that were ignored. Harris v. Hegmann, 198 F.3d 153, 159–60 (5th
Cir. 1999).
       Galvan alleged that he received no attention from a physician or other
trained medical provider from the time of his first complaint on December 24
until December 27.     A guard responded to his complaints of severe, life-
threatening pain by offering Pepto-Bismol and a home remedy.             Like the
plaintiff’s requests for medical treatment in Harris, Galvan’s repeated
requests were not answered by Martinez and Crober for days. See Harris, 198
F.3d at 159–60. Galvan has alleged facts that would entitle him to relief if
proven. Dismissal for failure to state a claim was error.


II.    Whether the uncontested facts reveal Galvan received adequate care
       We next address the district court’s conclusion that the uncontested facts
revealed that Galvan received reasonable medical attention. Although the
defendants filed a motion to dismiss, the defendants also attached exhibits and
asked the court to convert the motion to dismiss into a motion for summary
judgment. When a court considers evidence outside of the pleadings, it should
convert the motion into a motion for summary judgment. See Brand Coupon
Network, L.L.C. v. Catalina Mktg. Corp., 748 F.3d 631, 635 (5th Cir. 2014).
Conversion is appropriate when the nonmovant has adequate notice that the
court may consider matters outside of the pleadings. Isquith ex rel. Isquith v.
Middle S. Utils., Inc., 847 F.2d 186, 196 (5th Cir. 1988) (quoting Clark v.
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                                  No. 16-41504
Tarrant Cnty., 798 F.2d 736, 746 (5th Cir. 1986)). Reasonable doubts as to
whether the nonmovant received adequate notice should be resolved in the
favor of the nonmovant. Resolution Tr. Corp. v. Sharif-Munir-Davidson Dev.
Corp., 992 F.2d 1398, 1402 (5th Cir. 1993). Galvan did not raise arguments
concerning prejudice or lack of notice in any meaningful way on appeal. He
therefore forfeited any such arguments.
      Regardless of the district court’s intent, under our precedent, when a
district court grants a motion to dismiss but relies on facts outside of the
pleadings, the appropriate standard for our review is the summary judgment
standard. Smith’s Estate v. Tarrant Cnty. Hosp. Dist., 691 F.2d 207, 208 (5th
Cir. 1982). Here, the district court relied on facts outside of the pleadings in
order to hold that Galvan did receive adequate medical care. As a result, we
review this conclusion under the summary judgment standard.
      A district court’s “grant of summary judgment is reviewed de novo under
the same standard as that applied by the district court.” Ellert v. Univ. of Tex.,
52 F.3d 543, 545 (5th Cir. 1995). Summary judgment is appropriate “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. “In
considering the motion, the district court must draw inferences most favorable
to the party opposing the motion, and take care that no party will be
improperly deprived of a trial of disputed factual issues.” United States Steel
Corp. v. Darby, 516 F.2d 961, 963 (5th Cir. 1975). In addition to showing there
are no factual issues warranting trial, the party moving for summary judgment
must establish that it is entitled to judgment as a matter of law. Reid v. State
Farm Mut. Auto. Ins. Co., 784 F.2d 577, 578 (5th Cir. 1986). The movant must
make this requisite showing before the burden shifts to the nonmovant to
produce evidence to oppose the motion. Russ v. Int’l Paper Co., 943 F.2d 589,
592 (5th Cir. 1991).
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                                 No. 16-41504
      The district court considered the materials outside of the pleadings and
concluded that the uncontested facts demonstrated that Galvan did not have a
viable claim of deliberate indifference. To support its conclusion, the district
court referenced the fact that a doctor diagnosed Galvan with acid reflux on
December 27 and that doctors diagnosed him with a urinary tract infection on
December 30. It also noted the non-prescription remedies administered to
Galvan by the defendants before he was seen by a doctor. Based on these facts,
the district court concluded that “no medical treatment was arbitrarily
withheld.”
      Although the record shows that Galvan was eventually seen by a doctor,
the district court did not address whether the delay between when Galvan
complained and when he was evaluated by a doctor was deliberate indifference.
Such delays can give rise to a claim of deliberate indifference. Easter, 467 F.3d
at 461–65.    Even under the facts as presented by the defendants, from
December 24 until December 27, Galvan continued to complain of pain. There
was a three-day delay before Galvan was seen by a doctor, during which
Galvan reported experiencing excruciating pain. As a result, Martinez and
Crober have not shown that they are entitled to judgment as a matter of law.
There remains a genuine dispute of material fact as to whether the defendants
were deliberately indifferent to Galvan’s injury.
      Although the defendants assert on appeal that they are entitled to
qualified immunity, the district court did not rule on this issue, so we do not
reach it. See, e.g., Galvan v. Garmon, 710 F.2d 214, 215 n.2 (5th Cir. 1983).
      We AFFIRM the dismissal of Calhoun County and Sheriff Aleman. We
REVERSE the dismissal of Defendants Crober and Martinez and REMAND
for further proceedings.




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