               United States Court of Appeals
                          For the Eighth Circuit
                      ___________________________

                              No. 14-1904
                      ___________________________

                                 Arthur Triplett

                     lllllllllllllllllllll Plaintiff - Appellee

                                        v.

    Charles Palmer, Director; Jason Smith, Director of the CCUSO Program

                          lllllllllllllllllllll Defendants

                       Mary Benson, ARNP; Dr. Veit

                   lllllllllllllllllllll Defendants - Appellants
                                    ____________

                  Appeal from United States District Court
                for the Northern District of Iowa - Sioux City
                               ____________

                         Submitted: January 29, 2015
                           Filed: February 3, 2015
                               [Unpublished]
                               ____________

Before SMITH, GRUENDER, and BENTON, Circuit Judges.
                          ____________

PER CURIAM.
       Arthur Triplett, a patient civilly committed at Iowa’s Civil Commitment Unit
for Sexual Offenders (CCUSO), brought this 42 U.S.C. § 1983 suit claiming that he
suffered violations of his constitutional rights when Nurse Practitioner Mary Benson
and Dr. Stephen Veit failed to diagnose his throat cancer by conducting a more
thorough examination, and when Benson failed to refer him to a specialist earlier than
she did. Defendants moved for summary judgment on the basis of qualified
immunity, and the district court denied the motion. This interlocutory appeal
followed,1 in which we have jurisdiction to review issues of law, but not to resolve
questions of evidence, or to determine whether the pretrial record reveals a genuine
issue of fact for trial. See Plumhoff v. Rickard, 134 S. Ct. 2012, 2019 (2014). We
conduct de novo review, see Stoner v. Watlingten, 735 F.3d 799, 802 (8th Cir. 2013),
accepting the facts that the district court found were adequately supported, see Brown
v. Fortner, 518 F.3d 552, 557-58 (8th Cir. 2008). Defendants are not entitled to
qualified immunity if the facts construed in a light most favorable to Triplett establish
a violation of his constitutional rights, and if the right was clearly established at the
time of the alleged violation. See Fourte v. Faulkner Cnty., Ark., 746 F.3d 384, 387
(8th Cir. 2014). For the reasons that follow, we reverse the denial of summary
judgment and remand for entry of judgment in favor of Nurse Benson and Dr. Veit.

       After Triplett complained to Benson of voice raspiness and loss of volume, Dr.
Veit examined him and perceived redness in the posterior pharynx, diagnosed acid
reflux, and prescribed medication--with a plan to conduct further testing if Triplett
did not improve within six weeks. Triplett thereafter did not complain to either
defendant about issues with his voice for a year, and in fact saw Nurse Benson during
that time for other ailments, and told her at one point that the reflux medication had
helped. When Triplett finally complained again about his voice, Nurse Benson


      1
       Those defendants who are named in the caption, but are not designated as
appellants, were dismissed for lack of personal involvement, and are not at issue in
this appeal.

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immediately made an appointment for him to see a specialist, and Triplett attended
the appointment some two months later, at which time the specialist diagnosed and
treated the cancer. These facts show that Triplett had an objectively serious medical
condition--developing throat cancer--but the facts fail to show that either defendant
had actual and subjective knowledge of the condition and chose to ignore it, as
required to establish a violation of Triplett’s constitutional rights. See Scott v.
Benson, 742 F.3d 335, 339-40 (8th Cir. 2014) (deliberate indifference standard
applies to claims of constitutionally deficient medical care brought by CCUSO
detainees; plaintiff must show he suffered from objectively serious medical need, and
defendants knew of but deliberately disregarded that need).

      The district court reasoned that other staff within CCUSO to whom Triplett had
complained about his voice should have known something was wrong. Actual
knowledge on the part of defendants, however, is required to hold them liable under
section 1983. See Fourte, 746 F.3d at 387. The court also expressed concern that
when Nurse Benson had seen Triplett for other ailments, his voice was becoming
more frail. But these facts establish negligence at most, particularly because Triplett
not only made no complaint about his voice to Benson, but told her that his voice had
improved with the medication. See id. (deliberate indifference is more than
negligence or even gross negligence); Noll v. Petrovsky, 828 F.2d 461, 462 (8th Cir.
1987) (inmate showed only “that another physician in the same circumstance might
have ordered different tests and treatment”; evidence raised questions of medical
judgment, but did not show deliberate indifference); cf. Scott, 742 F.3d at 339-40
(CCUSO patient had substantial evidentiary threshold to clear in showing official
deliberately disregarded his needs by administering inadequate treatment). Likewise,
we are unable to conclude that Benson exhibited deliberate indifference when she
immediately called to make an appointment for Triplett to see a specialist after he
complained of voice issues the following year, even though the appointment was
made for a date that was two months from the phone call. Cf. Logan v. Clarke, 119
F.3d 647, 650 (8th Cir. 1997) (where there was three-month delay in referral for

                                         -3-
treatment, prison doctors may not have acted as quickly as hindsight might have
dictated but they made efforts to remedy problem in reasonable and sensible manner
and thus were not deliberately indifferent).

       Accordingly, we conclude that the facts fail to support a claim of deliberate
indifference, and further, that Nurse Benson and Dr. Veit are entitled to summary
judgment on the basis of qualified immunity.
                       ______________________________




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