     Case: 18-11373      Document: 00515309880         Page: 1    Date Filed: 02/13/2020




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

                                                                                FILED
                                                                           February 13, 2020
                                      No. 18-11373
                                                                             Lyle W. Cayce
                                                                                  Clerk
CHRISTOPHER THOMAS WOOLVERTON, in his individual capacity and as
personal representative of the Estate of Christopher Douglas Woolverton,
deceased,

                                                 Plaintiff-Appellant

v.

ANDREW GRATZ; MATTHEW SEYMOUR; LIEUTENANT MICHAEL
GRUVER; MD CHARLES BITTLE, JR.; GREGORY DAVID,

                                                 Defendants-Appellees


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 2:15-CV-314


Before KING, COSTA, and HO, Circuit Judges.
PER CURIAM: *
       Christopher Douglas Woolverton died from medical complications while
housed in a Texas prison. His son brought this lawsuit asserting claims of
excessive force and deliberate indifference against numerous prison
employees. In this appeal, he challenges the summary judgment dismissal of



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
     Case: 18-11373       Document: 00515309880          Page: 2     Date Filed: 02/13/2020


                                       No. 18-11373

excessive force claims against multiple guards and a deliberate indifference
claim against the doctor who treated Woolverton the day before his death. 1
           We agree with the grant of summary judgment in favor of these
appellees essentially for the reasons given in the extensive district court
rulings.     The excessive force claim relates to the guards’ extraction of
Woolverton from his cell in administrative segregation so that he could visit
the doctor for his medical problems. The guards knew Woolverton had a
history of violent resistance toward prison staff, including an incident earlier
that month when he spit at a guard and told him he was transmitting Hepatitis
C while also yelling racial slurs at prison staff. The spitting incident was one
of a number when Woolverton would pretend to be very sick and immobile but
then turn violent when staff entered his cell. Armed with this knowledge, on
the day in question the guards repeatedly requested that Woolverton stand
and allow them to restrain him before they took him to the medical unit. Only
after these repeated attempts to gain compliance failed did the guards deploy
pepper spray through a slot in the cell door. After spraying for about two
seconds, the guards again asked Woolverton to cooperate and sprayed a second
time only after he did not do so. At that point, the guards entered the cell and
physically extracted Woolverton, with no allegations of unnecessary force once
the guards were in the cell.             The two uses of pepper spray were not
unreasonable given the threat the guards perceived, their repeated attempts
to gain compliance before resorting to force, and the need to apply force so that
Woolverton could receive medical attention.



       1  The appeal is from the entry of partial judgment under Federal Rule of Civil
Procedure 54(b). That partial judgment does not include the deliberate indifference claim
the court dismissed against nurse Debra Killian. Summary judgment was denied on an
excessive force claim against Killian. After that claim is resolved and final judgment entered,
plaintiff will be able to appeal any claims not included in the Rule 54(b) judgment.


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                                 No. 18-11373

         Summary judgment was also appropriate on the deliberate indifference
claim against Dr. Bittle.     Even if Woolverton could present evidence of
negligence or even gross negligence, it would not rise to the extremely high
threshold of deliberate indifference. Plaintiff contends that Bittle did not
adjust Woolverton’s catheter size as much as Woolverton requested, but an
incremental change in catheter size is a classic medical judgment. As for
Bittle’s final examination of Woolverton, even if imperfect because he did not
detect the kidney infection, there is no evidence to support the view that Bittle
wantonly disregarded Woolverton’s needs. To the contrary, Bittle ordered the
medical visit (which led to the extraction from the cell) and after the exam
ordered that a stool sample on Woolverton’s discarded clothes be tested for
blood.     Those attempts to help Woolverton, though unfortunately not
successful, are at odds with a finding of deliberate indifference to his medical
needs.
         AFFIRMED.




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