     Case: 12-10412       Document: 00512131658         Page: 1     Date Filed: 01/31/2013




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

                                                                            FILED
                                                                         January 31, 2013
                                     No. 12-10412
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

JUSTIN WAYNE SMITH,

                                                  Plaintiff-Appellee

v.

CINDY MARTINEZ, Registered Nurse, Kaufman County Sheriff’s Office,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 3:10-CV-703


Before REAVLEY, JOLLY, and DAVIS, Circuit Judges.
PER CURIAM:*
       Justin Wayne Smith, Texas prisoner #1518707, filed a 42 U.S.C. § 1983
lawsuit against four defendants associated with the Kaufman County Jail for
violations of his constitutional rights while he was a pretrial detainee in 2008.
Smith alleged that the defendants, including head nurse Cindy Martinez, were
deliberately indifferent to his serious medical needs arising from ulcerative
colitis. All four defendants moved for summary judgment, asserting qualified
immunity among other things.             The magistrate judge recommended 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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                                  No. 12-10412

summary judgment be granted in part and denied in part. The magistrate judge
found that there was a genuine issue of material fact that Martinez had been
deliberately indifferent to Smith’s medical needs by failing to monitor his
deteriorating condition from January 2, 2008, to February 14, 2008. Following
objections, the district court adopted the magistrate judge’s findings and
conclusions. The district court specifically found that the record as a whole
presented a genuine dispute of material fact “that Martinez acted with
deliberate indifference to Smith’s serious medical needs.”
      The denial of a motion for summary judgment based upon qualified
immunity is a collateral order capable of immediate review. Mitchell v. Forsyth,
472 U.S. 511, 530 (1985). However, our jurisdiction to review the denial is
“significantly limited,” extending to questions of law only. Kinney v. Weaver, 367
F.3d 337, 346 (5th Cir. 2004) (en banc). “Whenever the district court denies an
official’s motion for summary judgment predicated upon qualified immunity, the
district court can be thought of as making two distinct determinations, even if
only implicitly.” Kinney, 367 F.3d at 346. “First, the district court decides that
a certain course of conduct would, as a matter of law, be objectively unreasonable
in light of clearly established law. Second, the court decides that a genuine issue
of fact exists regarding whether the defendant(s) did, in fact, engage in such
conduct.” Id. “According to the Supreme Court, as well as our own precedents,
we lack jurisdiction to review conclusions of the second type on interlocutory
appeal.” Id. “We do, however, have jurisdiction to review the first type of
determination, the purely legal question whether a given course of conduct
would be objectively unreasonable in light of clearly established law.” Id. at 347.
We have recently applied this analysis to the denial of summary judgment based
on qualified immunity in a pretrial detainee’s § 1983 action for deliberate
indifference to a substantial risk of medical harm. See Brown v. Strain, 663 F.3d
245, 248-50 (5th Cir. 2012).



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      In Brown, we held that a defendant would not be entitled to qualified
immunity if the plaintiff “had alleged facts showing that [the defendant] was
deliberately indifferent to the substantial risk of medical harm” faced by the
defendant. Id. at 249. We then cited Tamez v. Manthey, 589 F.3d 764, 770 (5th
Cir. 2009), which held that to show deliberate indifference, the plaintiff must
show that the defendant had subjective knowledge of facts from which an
inference of substantial risk of serious harm could be drawn, that the defendant
actually drew the inference, and that the defendant’s response indicated that he
subjectively intended that harm to occur. Brown, 663 F.3d at 249. This is the
standard applied by the district court. Martinez has not presented anything on
appeal that challenges the district court’s purely legal determination of the
evidence required to show that Martinez’s course of conduct in this matter
“would be objectively unreasonable in light of clearly established law.” Kinney,
367 F.3d at 347.
      Applying the facts alleged by Smith to the deliberate indifference
standard, the district court found that “a reasonable jury could find that Nurse
Martinez actually drew the inference that a substantial risk of serious harm
existed to [Smith] given that [Smith] testified that she repeatedly refused to
allow him to see Dr. Fortner during this time[ ]frame, despite him asking
repeatedly and graphically detailing his symptoms to her.”        In overruling
objections to these findings, the district court found that additional evidence
cited by Martinez did not negate the sufficiency of these facts to preclude
summary judgment. Rather, the district court found that the resolution of the
“case turns on assessing the credibility of witnesses and weighing the evidence,
neither of which the court can do at the summary judgment stage.”
      On appeal, Martinez does not directly challenge the district court’s
conclusion that there are genuine issues of material fact but argues that other
facts outweigh Smith’s testimony. Martinez argues that Smith did not allege
evidence showing that she had knowledge of facts from which to infer that Smith

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                                 No. 12-10412

was at substantial risk of serious medical harm because his symptoms were
normal for his condition and he was receiving the standard medical treatment
for them. She argues that Smith failed to allege facts showing that he faced a
substantial risk of medical harm because there was nothing else that could have
been done for him during January and February of 2008. Martinez argues that
she was following the orders of Smith’s doctor and that any decision to deviate
from those orders could amount to no more than medical malpractice. Finally
she argues that, assuming she ignored Smith, she knew that he was being
treated by the medical staff at the jail. These arguments are all directed to the
truth of the factual allegations made by Smith and not “at whether the facts,
taken as true, could legally support an inference of deliberate indifference.”
Brown, 663 F.3d at 250. Accordingly, we do not have jurisdiction to review the
district court’s conclusion that there was a factual dispute as to what Martinez
knew of Smith’s underlying illness and deteriorating physical condition and
what can be inferred by her failure to take any action on his behalf based on his
worsening symptoms. See id. at 249-50.
      APPEAL DISMISSED.




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