                                    IN THE
                            TENTH COURT OF APPEALS

                                    No. 10-12-00011-CV

ABBAS KHOSHDEL, M.D.,
LLOYD ASCHBERGER, TERRI
PURSLEY, AND JAMIE WILLIAMS,
                                                                   Appellants
    v.

CHARLES GOOSBY,
                                                                   Appellee



                              From the 12th District Court
                                 Walker County, Texas
                                 Trial Court No. 24,620


                             MEMORANDUM OPINION


         In this interlocutory appeal, Appellants Abbas Khoshdel, M.D., Lloyd

Aschberger, P.A., Terry Pursley, and Jamie Williams1 appeal the trial court’s denial of

their motion for summary judgment on their qualified-immunity affirmative defense to

Appellee Charles Goosby’s claim for deliberate indifference to a serious medical need.

         Goosby, an inmate at the Wynne Unit in Huntsville, sued Dr. Khoshdel and

1The Texas Department of Criminal Justice was also sued, but it is not a party to this interlocutory
appeal.
Aschberger, a physician’s assistant, for their role in the treatment of Goosby’s broken

arm in the Wynne Unit. He sued Pursley (an administrative associate in the Wynne

Unit infirmary) and Williams (a practice manager in the Wynne Unit infirmary) because

they did not act in getting proper medical treatment for him, and he further alleged that

Williams failed to process his medical grievance as an emergency grievance.

       Appellants moved for summary judgment on their affirmative defense of

qualified immunity from suit on Goosby’s deliberate-indifference claim.

               Section 1983 creates a private right of action to vindicate violations
       of rights, privileges, and immunities secured by the Constitution and laws
       of the United States. Rehberg v. Paulk, 132 S.Ct. 1497, 1501 (2012). A prison
       official’s deliberate indifference to a substantial risk of serious harm to a
       prisoner violates the Eighth Amendment’s prohibition against cruel and
       unusual punishment. Farmer v. Brennan, 511 U.S. 825, 828 (1994); Estelle v.
       Gamble, 429 U.S. 97, 104 (1976). Deliberate indifference is an extremely
       high standard to meet. Gobert v. Caldwell, 463 F.3d 339, 346 (5th Cir. 2006).
       To establish deliberate indifference, a prisoner must show that the prison
       official knew of and disregarded an excessive risk to the prisoner’s health
       or safety. Farmer, 511 U.S. at 837. The prisoner must show both that the
       official was aware of facts from which the inference could be drawn that a
       substantial risk of serious harm existed and that the official actually drew
       the inference. Id.

Heirs of Del Real v. Eason, 374 S.W.3d 483, 486-87 (Tex. App.—Eastland 2012, no pet. h.).

       “An official’s failure to perceive and to alleviate a risk is not an infliction of

punishment. Moreover, negligent medical treatment is not a violation of section 1983.”

Tex. Dep’t of Crim. Justice v. Thomas, 263 S.W.3d 212, 219 (Tex. App.—Houston [1st Dist.]

2007, pet. denied) (citations omitted).     Evidence of inadvertent failure to provide

medical care or negligent diagnosis is insufficient to establish “unnecessary and wanton

infliction of pain” in violation of the Eighth Amendment. Cole v. Frizzell, No. 13-07-


Khoshdel v. Goosby                                                                      Page 2
00092-CV, 2008 WL 4117216, at *3 (Tex. App.—Corpus Christi Aug. 14, 2008, no pet.)

(mem. op.) (citing Wilson v. Seiter, 501 U.S. 294, 297, 111 S.Ct. 2321, 115 L.Ed.2d 271

(1991) (holding that “inadvertent failure to provide adequate medical care” fails to

establish the requisite culpable state of mind)).

               “[T]he facts underlying a claim of ‘deliberate indifference’ must
       clearly evince the medical need in question and the alleged official
       dereliction.” Johnson v. Treen, 759 F.2d 1236, 1238 (5th Cir. 1985) (citing
       Woodall v. Foti, 648 F.2d 268 (5th Cir. 1981)); County of El Paso, 180 S.W.3d
       at 863 (holding that an inmate must prove that a jail official was
       subjectively aware of facts from which an inference could be drawn that a
       substantial risk of serious harm existed and that the jail official actually
       drew such an inference). Specifically, a plaintiff must demonstrate 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 wanton disregard for any serious medical needs.” Domino
       v. Tex. Dep't of Criminal Justice, 239 F.3d 752, 756 (5th Cir. 2001) (quoting
       Johnson, 759 F.2d at 1238); County of El Paso, 180 S.W.3d at 863. Medical
       records of sick calls, examinations, diagnoses, and medications may rebut
       an inmate’s allegations of deliberate indifference. Banuelos, 41 F.3d at 235
       (citing Mendoza v. Lynaugh, 989 F.2d 191, 193-95 (5th Cir. 1993)); County of
       El Paso, 180 S.W.3d at 868.

Davis v. Barnett, No. 02-09-00207-CV, 2010 WL 3075670, at *4 (Tex. App.—Fort Worth

Aug. 5, 2010, no pet.) (mem. op.).

       Qualified or official immunity from suit is available … to government
       officials sued in their individual capacities under section 1983. Harlow v.
       Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727 (1982); see also City of Hempstead
       v. Kmiec, 902 S.W.2d 118, 120 n.1 (Tex. App.—Houston [1st Dist.] 1995, no
       writ) (noting that “the term ‘official immunity’ is confusing because
       official immunity covers acts performed by a government official in the
       person’s individual capacity, not in the person’s official capacity”).
       Government officials performing discretionary functions have qualified
       immunity from a suit for damages under section 1983 so long as the
       official’s conduct does not violate clearly established constitutional or
       statutory rights of which a reasonable person would be aware. Padilla v.
       Mason, 169 S.W.3d 493, 502 (Tex. App.—El Paso 2005, pet. denied); Scott v.
       Britton, 16 S.W.3d 173, 180 (Tex. App.—Houston [1st Dist.] 2000, no pet.).

Khoshdel v. Goosby                                                                        Page 3
       A legal right is “clearly established” when the “contours of the right [are]
       sufficiently clear that a reasonable official would understand that what he
       is doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640, 107
       S.Ct. 3034, 3039 (1987).

              When a governmental official asserts the affirmative defense of
       qualified immunity by pleading good faith and demonstrating that his
       actions were within his discretionary authority, the summary judgment
       burden shifts to the plaintiff to show that the defendant’s conduct violated
       clearly established statutory or constitutional rights of which a reasonable
       person would have been aware. Newman v. Kock, 274 S.W.3d 697, 705
       (Tex. App.—San Antonio 2008, no pet.); Thomas v. Collins, 860 S.W.2d 500,
       503 (Tex. App.—Houston [1st Dist.] 1993, writ denied). The plaintiff must
       show: (1) the official’s conduct violated a federally guaranteed right; (2)
       the right was clearly established; and (3) the official’s conduct was
       objectively unreasonable in light of the clearly established right. Thomas,
       860 S.W.2d at 503. Objective reasonableness is a question of law for the
       court when deciding qualified immunity in a section 1983 action. Hare v.
       City of Corinth, 135 F.3d 320, 328 (5th Cir. 1998); see also Poteet v. Sullivan,
       218 S.W.3d 780, 792 (Tex. App.—Fort Worth 2007, pet. denied)
       (recognizing that objective reasonableness is a matter of law).

Hill v. Trinci, No. 14-10-00862-CV, 2012 WL 3016855, at *3-4 (Tex. App.—Houston [14th

Dist.] July 24, 2012, no pet. h.) (mem. op.); see also Livingston v. Taylor, No. 13-07-00690-

CV, 2009 WL 2397542, at *2-3 (Tex. App.—Corpus Christi Aug. 6, 2008, no pet.) (mem.

op.); Thomas, 263 S.W.3d at 219.

               In deciding whether the medical staff was entitled to qualified
       immunity, we apply a bifurcated analysis. Saucier v. Katz, 533 U.S. 194,
       201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001)[, overruled in part by Pearson v.
       Callahan, 555 U.S. 223, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009)]. First, we
       determine whether the medical staff’s alleged conduct violated a
       constitutional right. Id. Second, we determine whether the right was
       clearly established; that is, whether it would be clear to a reasonable
       official that his conduct violated that right. Id. The threshold question is
       whether the facts alleged, taken in the light most favorable to the party
       asserting the injury, show that the officer's conduct violated a
       constitutional right. Id. If the facts do not show a constitutional violation,
       the official is entitled to immunity. Id. If, on the other hand, violation of a
       constitutional right is shown by the facts alleged, the next step is to

Khoshdel v. Goosby                                                                        Page 4
        determine whether that right was clearly established at the time of the
        alleged violation. Id.

McBride v. Tex. Dep’t of Crim. Justice, No. 13-07-00130-CV, 2008 WL 3971102, at *3 (Tex.

App.—Corpus Christi Aug. 28, 2008, pet. denied) (mem. op.).              Courts now have

discretion in deciding which of the two prongs of the Saucier qualified-immunity

analysis should be addressed first. Pearson, 555 U.S. at 236, 129 S.Ct. at 818.

        The summary-judgment evidence consists of Goosby’s prison medical records

and grievances, the affidavit of Bobby Vincent, M.D., the Huntsville District Medical

Director for the University of Texas Medical Branch, Correctional Medical Care (UTMB-

CMC), and the affidavit of Isaac J. Saxon, Jr., the Cluster/District Practice Manager for

the Northwest District of the University of Texas Medical Branch, Correctional Medical

Care.

        It is undisputed that Goosby fell in the shower and fractured his right arm (distal

radius) in the early morning hours of July 18, 2008. Within hours of the fall, Goosby

was transported by van to the East Texas Medical Center Trinity Hospital (a “free-

world” hospital), where he received an x-ray, a splint, and a recommendation that he be

given Tylenol #3 for pain. Aschberger evaluated Goosby later that day and ordered

additional x-rays, Darvocet N-100 (a narcotic pain reliever similar to Tylenol #3), Motrin

(800 mg), and continued use of the splint. Aschberger also submitted an expedited

request for a consultation with an orthopedist with UTMB-CMC in Galveston. The

evidence then reflects the following events:

       On July 21, Aschberger reevaluated Goosby, ordered a cast for four weeks, re-
        ordered the pain medication, and advised Goosby to keep his appointment with

Khoshdel v. Goosby                                                                   Page 5
       the UTMB orthopedist. Goosby ended up missing this initial appointment
       because of a norovirus outbreak at the Wynne Unit that led to a unit-wide
       quarantine and lockdown. Over the next two days, Aschberger changed
       Goosby’s work restriction so that he was medically unassigned to work, and
       Aschberger ensured that Goosby had access to the Darvocet at the “pill
       window.”

      On August 4, Goosby complained of pain, and the next day Aschberger saw him
       and not only ordered the requested medication but changed Goosby’s housing
       restriction to include a low-bunk restriction and ground restriction.

      On August 19, Dr. Abbas Khoshdel evaluated Goosby. Because Goosby had
       missed his initial appointment, Dr. Khoshdel submitted a second request for an
       expedited consultation with a UTMB orthopedist.

      On September 3, Goosby submitted an I-60 requesting that Dr. Khoshdel submit
       another request for an expedited consultation with a UTMB orthopedist because
       Goosby had again missed his scheduled appointment, this time because of
       Hurricane Gustav, which caused the temporary closure of the UTMB facility in
       Galveston.

      On September 15, Goosby submitted another I-60, again requesting that Dr.
       Khoshdel submit request for an expedited consultation with a UTMB orthopedist
       and referring to another storm. This reference was to Hurricane Ike, which
       struck Galveston on September 13 and caused major damage to the UTMB
       facility, which had been evacuated and had to close because of the damage.

      On October 3, Aschberger saw Goosby, removed the cast, and took further x-rays
       to check on the arm’s healing status. He also recommended Naprosyn for pain.

      On October 9, Aschberger followed up with Goosby upon receiving the
       radiology report from the October 3 x-rays and gave Goosby a 90-day medical
       pass. Aschberger also submitted another expedited request for an orthopedist
       consultation, noting that Goosby’s previously scheduled appointments had been
       canceled because of the norovirus quarantine and the hurricanes.

      On October 16, Goosby submitted an I-60 complaining of pain and requesting
       reapplication of the cast. Aschberger saw Goosby the next day, ordered and
       applied a splint, and recommended continued use of Naprosyn.

      On October 23, Goosby was seen via Digital Medical Services (DMS), a means of
       seeing the patient via video by staff at a remote unit, by the UTMB Galveston
       orthopedics staff. He was diagnosed with a non-union of the distal right radius,

Khoshdel v. Goosby                                                               Page 6
       and surgery was recommended and was to be scheduled for mid-November. Dr.
       Natividad, the orthopedic surgeon, had apparently anticipated that the UTMB
       hospital in Galveston would be reopened by then, but it remained officially
       closed until January 2009. The closure led to a surgery backlog, and Goosby’s
       surgery did not occur until February 5, 2009.

      On November 21, Goosby submitted an I-60 complaining of pain and inquiring
       whether his surgery had been scheduled. He was informed that the UTMB
       hospital in Galveston was not operational and was being repaired and that the
       scheduling would be handled when the hospital returned to full operation.

      On December 1, Goosby filed a Step 1 Grievance complaining of the delays in
       treatment and requesting that he be sent to an outside facility for treatment.
       Pursley informed Goosby that the grievance was forwarded to the medical
       department. Williams responded by noting Goosby’s prior treatment, the
       cancelled appointments and their reasons, and that his surgery was scheduled at
       that time for January 2009.

      On December 2, Goosby complained again of pain and was prescribed the anti-
       inflammatory drug Mobic by Michael Dome, another physician’s assistant.
       Dome also found that a referral to a “free-world” medical facility was not
       necessary.

      On December 21, Goosby submitted an I-60 requesting renewal of his expiring
       prescription and splint pass. Aschberger saw Goosby the next day and renewed
       both items.

      On December 23, Dr. Khoshdel ordered an x-ray in preparation for Goosby’s
       December 27 DMS visit with the orthopedics staff.

      On January 11, 2009, Goosby complained again of pain, and on January 14 was
       prescribed Nortiptyline.

      On February 5, 2009, Goosby underwent open reduction internal fixation
       surgery.

       In his affidavit, Dr. Vincent states that UTMB-CMC is contracted to provide

health care to TDCJ offenders (inmates) and that CMC Scheduling in Galveston makes

all specialty (such as orthopedics) appointments and surgical scheduling. No unit

physician, physician’s assistant, practice manager, or administrative assistant has the

Khoshdel v. Goosby                                                               Page 7
ability to schedule or prioritize specialty appointments or surgeries. Dr. Vincent further

states that, because Goosby’s arm was either in a cast or a splint, he did not have an

acute medical condition that would have qualified him to be sent to a “free-world”

hospital.

         In their first issue, Appellants assert that Goosby has not established deliberate

indifference to a serious medical need. The gist of Goosby’s deliberate-indifference

claim against Appellants is that they delayed surgery and that they (including Williams

and Pursley)2 failed to send him to a “free-world” hospital for surgery during the time

when he could not be surgically treated at UTMB Galveston.

         Indulging all reasonable inferences in favor of Goosby and taking all evidence

favorable to him as true, we conclude that Appellants met their burden of showing that

there is no genuine issue of material fact and that they are entitled to judgment as a

matter of law on the issue of qualified immunity. The summary judgment evidence

does not indicate that Appellants were deliberately indifferent to Goosby’s medical

needs.

         A delay in medical care violates the Eight Amendment only if it is due to

deliberate indifference and the delay results in substantial harm. Mendoza v. Linaugh,

989 F.2d 191, 195 (5th Cir. 1993); see also Smith v. Harris, 401 Fed. Appx. 952, 953 (5th Cir.
2
  In his brief, Goosby asserts that Williams and Pursley had the authority to send him to a “free-world”
facility. We assume without deciding that they did, but we also hold that, in their administrative roles,
including their processing of Goosby’s grievance, Goosby has not demonstrated deliberate indifference to
his medical needs in violation of his constitutional rights. See Criollo v. Milton, 414 Fed. Appx. 719, 721
(5th Cir. 2011) (affirming dismissal of deliberate-indifference claim against prison’s practice manager and
program administrator because their role in grievance process was no role in inmate’s medical treatment);
see also Marquez v. Woody, 440 Fed. Appx. 318, 322 (5th Cir. 2011) (affirming summary judgment on
deliberate-indifference claim against prison’s practice manager, who had no role in providing medical
care to inmate).

Khoshdel v. Goosby                                                                                  Page 8
2010). As for the missed and delayed appointments and the delayed surgery, the record

is plain that Appellants had no control over scheduling with UTMB-CMC, and Goosby

has not shown deliberate indifference for that reason.       Goosby also cannot show

deliberate indifference for the delayed surgery because the record shows that delays

were caused by a virus quarantine, two hurricanes, and the closure of the UTMB

Galveston hospital for months because of the damage caused by Hurricane Ike.

       Furthermore, “the plaintiff must show that the officials ‘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.’”

Domino v. Tex. Dep’t of Crim. Justice, 239 F.3d 752, 756 (5th Cir. 2001). The evidence in

this case plainly shows that Goosby consistently received medical care (x-rays, a cast

and splints, and medication) while he was waiting for surgery. See Fails v. DeShields,

349 Fed. Appx. 973, 976 (5th Cir. 2009) (“Deliberate indifference is especially hard to

show when the inmate was provided with ongoing medical treatment.”).

       As for Goosby’s primary complaint that Appellants should have sent him to a

“free-world” hospital for surgery when he was unable to have surgery at UTMB

Galveston, the only summary judgment evidence is Dr. Vincent’s affidavit testimony

that, because Goosby’s arm was either in a cast or a splint, he did not have an acute

medical condition that would have qualified him to be sent to a “free-world” hospital.

Goosby’s disagreement with this medical judgment cannot establish deliberate

indifference. “An inmate’s disagreement with the kind of medical treatment that he has

received is insufficient as a matter of law to state an Eighth Amendment violation.”

Khoshdel v. Goosby                                                                 Page 9
County of El Paso v. Dorado, 180 S.W.3d 854, 868 (Tex. App.—El Paso 2005, pet. denied)

(citing Norton v. Dimazana, 122 F.3d 286, 291 (5th Cir. 1997), and Young v. Gray, 560 F.2d

201, 201 (5th Cir. 1977)); see Lagaite v. Uy, 347 S.W.3d 890, 892 (Tex. App.—Amarillo

2011, no pet.) (“While it is true that inmates are entitled to medical care, they are not

entitled to the type of care they choose.”) (citations omitted).

       The summary judgment evidence does not indicate that Appellants knew of and

disregarded an excessive risk to Goosby’s health or safety. Therefore, Goosby failed to

demonstrate deliberate indifference to his medical needs in violation of his

constitutional rights. Having failed to find such a violation, our analysis is complete.

See McBride, 2008 WL 3971102, at *4 (citing Saucier, 533 U.S. at 201, 121 S.Ct. at 2156).

Appellants are entitled to qualified immunity from suit on Goosby’s claims.

Appellants’ first issue is sustained, and we reverse the trial court’s denial of their

motion for summary judgment. We render judgment that Goosby take nothing on his

section 1983 claim against Appellants because they have qualified immunity from suit.

We remand this case for further proceedings consistent with this opinion.



                                                  REX D. DAVIS
                                                  Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Reversed and rendered and remanded
Opinion delivered and filed November 1, 2012
[CV06]



Khoshdel v. Goosby                                                                 Page 10
