     Case: 18-11438       Document: 00515151726         Page: 1     Date Filed: 10/09/2019




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

                                                                             FILED
                                     No. 18-11438                      October 9, 2019
                                   Summary Calendar
                                                                        Lyle W. Cayce
                                                                             Clerk
ROBERT ALAN THOMPSON,

                                                  Plaintiff - Appellant

v.

T CRNKOVICH, HSA, FPC Big Spring,

                                                  Defendant - Appellee


                   Appeals from the United States District Court
                        for the Northern District of Texas
                              USDC No. 1:16-CV-55


Before BARKSDALE, ELROD, and DUNCAN, Circuit Judges.
PER CURIAM: *
       Proceeding pro se and in forma pauperis, Robert Alan Thompson, federal
prisoner # 17709-280, challenges the district court’s granting Crnkovich’s
summary-judgment motion, based on qualified immunity. (Thompson did not
respond to the motion.)
       As in district court, Thompson claims Crnkovich, the Health Services
Administrator (HSA) at the facility in which he is confined, violated his Eighth


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 18-11438

Amendment rights by being deliberately indifferent to his serious medical
needs: Crnkovich did not approve him for total knee-replacement surgery; and
she did not provide him with a walker.
      A federal prisoner may bring an action, pursuant to Bivens v. Six
Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971),
for an Eighth-Amendment claim based on cruel-and-unusual punishment. See
Ziglar v. Abbasi, 137 S. Ct. 1843, 1854–55 (2017) (citing Carlson v. Green, 446
U.S. 14, 19 (1980)). Prisoners have a clearly-established Eighth-Amendment
right not to be denied, by deliberate indifference, attention to serious medical
needs. See Estelle v. Gamble, 429 U.S. 97, 104–05 (1976) (citations omitted);
see also Gobert v. Caldwell, 463 F.3d 339, 345 & n.13 (5th Cir. 2006) (citations
omitted). To prevail on such a claim, a prisoner must show that defendant
“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) (citation omitted). It “is an
extremely high standard to meet”. Id. The prisoner must show that he was
“exposed to a substantial risk of serious harm” and that prison officials “were
actually aware of the risk, yet consciously disregarded it”. Lawson v. Dallas
Cty., 286 F.3d 257, 262 (5th Cir. 2002) (citations omitted).
      Additionally, “[p]ersonal involvement is an essential element of a civil
rights cause of action”. Thompson v. Steele, 709 F.2d 381, 382 (5th Cir. 1983)
(citation omitted). Defendant “must be either personally involved in the acts
causing the deprivation of a person’s constitutional rights, or there must be a
causal connection between an act of the [defendant] and the constitutional
violation sought to be redressed”. Lozano v. Smith, 718 F.2d 756, 768 (5th Cir.
1983) (citation omitted).



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      A summary judgment is reviewed de novo. Austin v. Kroger Tex., L.P.,
864 F.3d 326, 328 (5th Cir. 2017) (per curiam) (citation omitted). “The court
shall grant summary judgment 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(a). In that regard, the court must view all
facts and draw all reasonable inferences in the light most favorable to the non-
moving party. Austin, 864 F.3d at 328–29 (citation omitted). When “the record
taken as a whole could not lead a rational trier of fact to find for the nonmoving
party, there is no genuine issue for trial”. Scott v. Harris, 550 U.S. 372, 380
(2007) (internal quotations and citation omitted).         Additionally, although
Thompson did not respond to Crnkovich’s summary-judgment motion in
district court, this does not alone justify summary judgment. See Hibernia
Nat’l Bank v. Administracion Cent. Sociedad Anonima, 776 F.2d 1277, 1279
(5th Cir. 1985) (citation omitted).
      Importantly, “qualified immunity protects government officials from
liability for civil damages insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person
would have known”. Pearson v. Callahan, 555 U.S. 223, 231 (2009) (internal
quotation marks and citation omitted). “The qualified immunity defense has
two prongs: whether an official’s conduct violated a constitutional right of the
plaintiff; and whether the right was clearly established at the time of the
violation.” Brown v. Callahan, 623 F.3d 249, 253 (5th Cir. 2010) (citation
omitted). “A court may rely on either prong of the defense in its analysis.” Id.
(citation omitted). When, however, defendant has asserted qualified immunity
in a summary-judgment motion, as here, “the burden then shifts to the
plaintiff, who must rebut the defense by establishing a genuine fact issue as to




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whether the official’s allegedly wrongful conduct violated clearly established
law”. Id. (citation omitted).
        The    summary-judgment         evidence    shows   a   consulting    surgeon
recommended Thompson receive knee-replacement surgery.                    When such
surgery, considered “medically acceptable – not always necessary” by the
Federal Bureau of Prisons (BOP), is recommended, the relevant institution’s
Utilization Review Committee (URC) must review the recommendation and
decide whether to approve it. The URC, which includes the institution’s HSA
(in   this    instance,   Crnkovich),    may   seek     secondary    review    of   the
recommendation by BOP regional-level medical staff.
       The URC, including Crnkovich, referred Thompson’s case for secondary
review. Regional-level medical staff disapproved the surgery and called for
conservative management of Thompson’s condition through weight loss, pain
management, and activity restrictions.             Crnkovich, therefore, lacked the
necessary personal involvement in the claimed constitutional deprivation,
because she was not involved in the decision made by the BOP’s regional
medical staff.
       Even assuming arguendo Crnkovich had the requisite personal
involvement in the denial, the record reflects nothing more than a
disagreement over Thompson’s treatment plan. Both elective surgery and the
nonsurgical management techniques chosen here are permitted by the BOP’s
Clinical Practice Guidelines for treating Thompson’s condition, and his
disagreement with his treatment plan is insufficient to establish a
constitutional violation. See Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir.
1991) (per curiam).
       Regarding Thompson’s not being provided a walker, he was issued a cane
in July 2015. The BOP considers a cane, like a walker, durable medical



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                                  No. 18-11438

equipment available for treating Thompson’s condition.             The denial of
Thompson’s request for a walker, either in addition to or instead of a cane,
therefore does not rise to the level of a constitutional violation. See Gobert, 463
F.3d at 346 (noting “the decision whether to provide additional treatment is a
classic example of a matter for medical judgment” that does not establish
deliberate indifference (internal quotations and citation omitted)).
      Moreover, Crnkovich lacked authority to issue a walker absent an order
for one, which had not been given, and absent directly evaluating Thompson
herself or consulting with a lower-level practitioner presently evaluating
Thompson. As an HSA, Crnkovich is an administrator, and she does not
routinely perform any clinical services.      Without the requisite authority,
Crnkovich cannot be found to have been deliberately indifferent toward
Thompson’s alleged needs. See Marquez v. Woody, 440 F. App’x 318, 323 (5th
Cir. 2011) (per curiam) (holding a prison official was not deliberately
indifferent for not issuing dentures where the official “did not have the
authority to physically give [the prisoner] dentures or to change the policy on
dentures”).
      Finally, Thompson also contends on appeal he was overmedicated,
without regard to prior medical diagnoses. Although Thompson mentions
being overmedicated in passing within his district-court briefing, he did not
raise any concern over his prior diagnoses there, and he cannot on appeal
attack the grant of summary judgment “by raising distinct issues that were
not before the district court”. John v. State of La. (Bd. of Trs. for State Colls.
and Univs.), 757 F.2d 698, 710 (5th Cir. 1985).         Moreover, to the extent
Thompson has claimed, both here and in district court, he was generally
overmedicated, he does not allege Crnkovich was involved.
      AFFIRMED.



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