     Case: 14-41403      Document: 00513078141         Page: 1    Date Filed: 06/15/2015




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

                                    No. 14-41403
                                                                                      Fifth Circuit

                                                                                    FILED
                                  Summary Calendar                              June 15, 2015
                                                                               Lyle W. Cayce
ERIC D. MCCORVEY,                                                                   Clerk


                                                 Plaintiff-Appellee
v.

LVN ERNEST STYLES,

                                                 Defendant-Appellant




                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 3:12-CV-271


Before SMITH, WIENER, and ELROD, Circuit Judges.
PER CURIAM:*
       Defendant-Appellant, Ernest Styles, a Licensed Vocational Nurse at a
Texas Department of Criminal Justice (“TDCJ”) prison, filed this interlocutory
appeal of the district court’s denial of his motion for summary judgment
grounded in qualified immunity after Plaintiff-Appellee Eric McCorvey filed
the instant Eighth Amendment action. McCorvey alleged that Styles was
deliberately indifferent to his (McCorvey’s) serious medical needs which




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-41403
resulted from a sexual assault by a prison guard who was eventually convicted
of improper sexual activity with McCorvey as a person in custody. We affirm.

      McCorvey was harassed, threatened, and eventually sexually assaulted
by a prison guard while an inmate in a TDJC prison. After McCorvey reported
the incident, an officer from the Office of Inspector General took McCorvey to
the prison’s medical unit, identified him as the victim of a sexual assault, and
expressly requested of Styles that McCorvey be examined, including
application of an oral swab and a rape kit. Styles refused that request, making
such excuses as (1) he did not know which provider was on call, (2) he did not
know where the kits were located, and (3) he was not permitted to break the
seal on a kit. None contests that Styles failed to contact a physician or other
practitioner; refused to examine or evaluate McCorvey; did not obtain a
history; and did not refer McCorvey to a mental health professional. Neither
is it contested that Styles did not make a record of McCorvey’s visit until four
days later. Despite McCorvey’s request for psychological treatment, Styles
failed to respond, claiming there was nothing he could do. In sum, Styles
refused to take any action whatsoever. As a result, McCorvey received neither
a medical exam nor mental health treatment until he again requested
assistance, this time from a different nurse who treated him and referred him
to a mental health professional. In his §1983 complaint, McCorvey lodged an
Eighth Amendment cruel and unusual punishment claim against Styles for
affirmatively denying care and treatment, thus exhibiting deliberate
indifference to McCorvey’s serious medical needs.

      Styles filed his motion seeking summary judgment dismissal on the basis
of qualified immunity, which the district court eventually denied. It ruled that
the summary judgment evidence supports the conclusions that Styles was told
by an appropriate officer that McCorvey had been sexually assaulted; that

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                                 No. 14-41403
Styles nevertheless failed to follow TDCJ protocol for reported sexual assaults;
that he did not administer the required procedures regarding sexual assault
kits; and that – given McCorvey’s establishment of a violation of his clearly
established Eighth Amendment right to be free from cruel and unusual
punishment, viz, deliberate indifference to serious medical needs – Styles’s
behavior was objectively unreasonable under clearly established law as well as
under TDCJ policy. The district court denied Styles’s summary judgment
motion, concluding that he had refused to treat McCorvey’s serious medical
needs despite being aware of those needs.

      In our de novo review, we may affirm the grant or denial of summary
judgment on any basis supported by the record. Even though, on appeal, Styles
advances a litany of complaints of things that were not done and actions that
were not taken, and even though Styles also claims that the district court erred
in relying on contested facts, we are satisfied that – given the current stage of
these proceedings and the status of the evidentiary record – the district court
did not commit reversible error in refusing to dismiss the instant action on
grounds of Styles’s qualified immunity, regardless of the court’s gratuitous
reference to both disputed and undisputed facts. Accordingly, the district
court’s order of November 20, 2014, denying summary judgment based on
qualified immunity is

AFFIRMED.




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