### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

N os. 12-10484 c/w 12-10539

TRAVIS HUNTER BLANK, Plaintiff-Appellant,
v. HAROLD EAVENSON; BOB GUZIK; MEDICAL DOCTOR LES SANDKNOP, Defendants-Appellees.

Appeals from the United States District Court for the Northern District of Texas U.S.D.C. No. 3:11-cv-1327-K-BK

Before STEWART, Chief Judge, and HIGGINBOTHAM and JONES , C ircuit Judges. PER CURIAM: * Plaintiff-Appellant, Travis Blank appeals f rom th e d i s trict c ourt’s grant of Defendants-Appellees’ mot i o n s to dismiss, and subsequent entries of final j u dgment. Blank p roceeds on appeal p r o se. For the reasons provided herein, we AFFIRM the final judgments of the district court. I . FACTS 1 U n i t e d S t a te s C o u r t o f A p p e al s F i f t h C i rc u i t 

### F I L E D June 19, 2013 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

. R. 47. 5, the Court has d eterm ined that this op inion should not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et f orth in 5 T H C I R

. R. 47. 5. 4.

1 For the l i m i t e d p urp os es of this ap p eal, w e treat as true all w ell- plead ed f actual allegations in Blank ’s com p laint. The live com p laint f or p urp os es of t h i s a p p eal is the Case: 12-10484 Document: 00512280730 Page: 1 Date Filed: 06/19/2013N os. 12-10484 c/w 12-10539

Blank is a federal prisoner, convicted of t h e possession a nd transportation of child pornography. W hile in pre-tri a l d e t e ntion, B lank w as temporarily housed at the Rockwall County Jail (the “Jail”), i n the vicinity of Dallas, Texas, pursuant to an arrangement with the U.S. Bureau of Prisons. Defendant-Appellee, Harold Eavenson is the Sheriff of Rockwall County. Defendant-Appellee, Bob Guzik is the Jail’s administrator. While n ot a county employee like Eavenson and Guzik, Defen d a n t

- Appellee, Les S andknop, D.O. serves as the Jail’s contractual primary care physician. Blank suffers f

rom “Crohn’s disease, ” a chronic inflammatory bowel disorder. Upon his arrest and detention on J une 30, 2 009, B lank informed the Jail’s medical intake staff of his condition. The charge nurse, L inda B ell, R.N. learned of Blank’s condition shortly after his arrival. 2 In his complaint, Blank alleges that Bell systematically denied him access to his personal g astrointestinal s pecialist, a nd to his pre-detention r e giment of Crohn’s medications on his d esired t imetable. A s a result, Blank alleges that he suffered “serious complications,” including “heavy i nternal bleeding.” After an August 5, 2009 hearing before the U.S. District C o urt for the Eastern D i strict of Texas i n the c hild pornography proceedings, the magistr a te judge ordered the

am end ed com p laint Blank f iled on N ovem ber 28, 2011. Blank ’s ap p ellate brief s contain ad d itional f

actual allegations that d id not ap p e ar in his p lead ings

. We d o not cred it thes e ad d itional allegations on ap peal. See V orna do v
. Lyna ugh , 920 F. 2d 320, 321 ( 5th C ir. 1991) ( p er curiam ) ( citations om itted )

.

2 Bell is not a p arty to this ap p eal. How ever, B lank nam ed Bell as a def end ant in the d is trict court p roceed ings

. Along w ith Eavens on, G uzik , and Sand k nop ( the “current Ap p ellees ”) , Bell m oved f or d is m is s al. The d is trict court granted d is m is s al w ith p rejud ice to the three current Ap p ellees , a n d l a t e r granted their s ubs equent m otions f or entry of f

inal jud gm ent. H ow ever, unlik e the current Ap p ellees ’ m otions , Bell’ s m o t ion turned on her
as s ertion of qualif

ied im m unity. The d is trict court d enied Bell’s m otion w ithout prejud ice, and granted Bell’s alternative m otion, p urs uant to Fed eral Rule of Civil Proced ure ( “FRCP”) 7( a) , f or B lank to f

ile a rep ly concerning qualif ied im m unity. While Blank f ailed to f ile that rep ly, the d is trict court proceed ings involving Bell continue to the p res ent d ate. 2 Case: 12-10484 Document: 00512280730 Page: 2 Date Filed: 06/19/2013N os. 12-10484 c/w 12-10539

U

. S

. M a r s h a l s t o e nsure t hat Blank’s Crohn’s disease was “thoroughly addressed and properly treated” while Blank remained in the Jail’s custody. Thereafter, the Jail arranged for Sandknop to examine Blank o n August 11, 2009, August 26, 2 009, February 2 3 , 2010, a nd March 9, 2010. Blank alleges that Sandknop—who is not a gastrointestinal s pecialist—removed him from his pre-detention Crohn’s med i c a t i o n s, failed to conduct a full physical examination, and failed t o p r e scribe appropriate replacement Crohn’s medications. While Sandknop drew a bloo d sample during the February 23 examination, Blank alleges that t he doctor f a i l e d to check him for intestinal swelling. While Sandknop prescribed m edications for Blank’s s y mptoms, Blank alleges that Sandknop refused to refer him to a specialist. At another child pornography hearing before the Ea s t e r n D i s t r i c t o f T e xas, the magistrate judge ordered that B lank b e examined by his personal specialist. Blank alleges that Bell failed to comply with the magistrate judge’s order. On March 13, 2010, Blank was admitted to the local emergency room with a fever of 104.2° F. T h e o n - c a ll doctor advised that Blank be examined by a gastrointestinal specialist within three days. Nine days later, on March 22, 2010, Blank was taken to a gastrointestinal specialist (not his personal specialist). Rockland C ounty S heriff’s Deputies escorted Blank to the examination. There, the specialist advised that Blank be admitted to a hospital for u ninterrupted t reatment. Blank alleges that Bell declined to comply with the specialist’s advice. On April 5, 2010, Bell again w as admitted to the loca l e m e r g ency room, t h i s t i m e w i t h s e v e r e d e h y d r a t i o n , malnourishment, hemorrhaging, and anemia. Bell remained admitted through April 13, 2 0 1 0 , w h ere he was fed b y i ntravenous drip. On April 14, 2010, upon learning of the Jail’s handling of B lank’s medical

c o n d i t i o n , t h e m a g i s t r a t e j u d g e o r d e r e d B l a n k ’ s r e l e a s e

— w i t h

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monitoring—pending h is trial o n t he child p ornography charges. Upon his monitored r elease, Blank was examined by his personal gastrointestinal specialist, who advised Blank that he had s u f f e red permanent scarring of his small intestine and p ermanent damage to his kidneys. Allegedly, the specialist also advised Blank that Sandknop had p rescribed him improper m edications for his symptoms. II. PROCEEDINGS On June 17, 2011, Blank filed the instant suit i n the U .S. District Court for the Northern District of T e x a s, pursuant t o 42 U.S.C. § 1983, alleging that Sandknop and B ell had been deliberately indifferent to the r isks posed by his Crohn’s disease. Blank further a lleged that E avenson and G uzik had inadequately trained and supervised Bell and Sandknop. Finally, Bell alleged t h a t E avenson and Guzik had failed to create o r enforce a policy of adequate supervision of Bell and Sandknop. P ut differently, B lank’s final allegation was that Eavenson and Guzik had implemented a policy of deliberate indifference to the risks posed by Bell and Sandknop’s inadequate supervision of him. 3 Sa n d k nop moved to d ismiss, arguing that, at best, Blank had stated a claim f or medica l negligence, and that B lank had not pled sufficient nonconclusory allegation s t o m e et the relatively heightened s tandard to state a claim for d eliberate indifference to medical risk. 4 Eavenson a n d Guzik also moved t o dismiss, a rguing that vicari o u s l iability cannot lie in Section 1983 actions. With r espect to Blank’s claims for i nadequate t raining/supervision,

3 To be clear, the d is tinction betw een ( i) Blank ’s claim s agains t Eavens on and G uzik f or inad equate training/ s up ervis ion; and ( ii) Blank ’s claim s agains t Eavens on and G uzik f or d eliberate ind if

f erence to inad equa t e s up ervis ion, hinged on the d ef end ants ’ p ers onal p articip ations in the alleged behaviors

. We ad d res s this dis tinction in greater d etail below

. Blank p roceed ed agains t all f our def end ants in their ind ivid ual cap acities f or money d am ages
.

4 Sand k nop als o argued that he had not act ed und er color of state law

. The d is trict court rejected this argum ent, w hich Sand k nop d oes not p urs ue on ap p eal.
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Eavenson and Guzik argued that Blank had insufficiently alleged their personal i n v o l v ement and that, in general, his allegations were vague a nd c o nclusory

. With respect to Blank’s claims for deliberate i ndifferenc e t o inadequate supervision, Eavenson and Guzik again argued that B lank’s allegations were vague a nd conclusory. Blank filed a seventeen-page r esponse and s ix-page surr eply in opposition to the motions to d i smiss, in which h e made a dditiona l factual allegations that had not appeared in his pleadings. In written recommendations dated Februar y 1 4, 2012, the magistrate judge issued findings of facts a nd conclusions o f law. Providing Blank leeway as

a p r o se litigant, 5 the magistrate judge ordered B l a nk to file an amended complaint against Sandknop within fourtee n d a ys. The magistrate judge

o t h e r w ise recommended t hat the d istrict court grant Eavenson, Guzik, a n d Sandknop’s motions to d ismiss. Concerning E avenson and Guzik, the district court declined to order an amended complaint b ecause Blank al r eady had “alleged his best case against [those] D e f e n d a nts, and the undersigned can

c o nceive of no basis on which he could r ecover.
. . .” While Blank f i l e d t i m e l y objections to the magistrate judge’s recommendations, he f a i l ed to file an amended complaint against Sandknop. On March 1 , 2012, the district c ourt adopted the magistrate judge’s recommendations. T he district c ourt d ismissed all c l a i m s against Eavenson, Guzik, and Sandknop with prejudice, and granted those defendants’ subsequent motions for entry of final judgment. Blank timely appealed. As explained above in footnote 2, proce e dings against Bell con t i n u e i n d i strict court. Therefore, Bell is not a party to this appeal. III. Standard of Review

5 Blank p res ently is rep res ented by couns el in the d is trict court p roceed ings agains t Bell. 5 Case: 12-10484 Document: 00512280730 Page: 5 Date Filed: 06/19/2013N os. 12-10484 c/w 12-10539

We review de novo the district c ourt’s grant of a motion to dismiss. Atchafalaya Basinkeeper v. Chustz , 682 F.3d 3 56, 357 (5th Ci r
. 2 0 1 2) (per curiam) (citations omitted). “To survive a motion to dismiss, a complaint must contain s ufficient factual m a tter, accepted as true, to s tate a claim to r elief that is plausible on its f

ace.” Ashcroft v. Iqbal , 5 56 U.S. 662, 678 (2009) (citation and internal quotation marks omitted). “The issue is not whether the plaintiff will ultimately prevail, but whether he is ent i t l e d t o offer evidence to s u pport his claim.” Jones v. G reninger , 188 F.3d 322, 324 (5th C i r
. 19 9 9 ) ( p er curiam) (citation omitted). “In analyzing [a] complaint, we will accept all well-pleaded facts as true, viewing them in the light most favorable to the plaintiff.” Id. (citation omitted). That said, “conclusory a llegations will not suffice to prevent a motion t o dismiss, and neither will u n warranted d e d u c tions of fact.” U.S. ex rel. Willard v. Humana Health Plan of Tex. Inc. , 336 F.3d 375, 379 ( 5th Cir. 2003) (alteration, citation, and internal quotation marks omitted). Rather, “[f]actual allegations

mu s t be enough t o raise a right to relief a bove the speculative l e vel, on the assumpt i on that all the allegations in the complaint are true (even if d oubtful in fact).” Bell Atlantic Corp. v. Twombly , 550 U .S. 544, 5 55 (2007) (citations and footnote omitted). IV. DISCUSSION A. Claim Against Sandknop f or Deliberate Indifference t o M edical Risk 1. Applicable Law “A pretrial d etainee’s constitutional right to me d i c a l c are, whether in
p r i s o n o r other custody, flows f rom the

. . . due process guarantees of the Fourteenth Amendment.” Wagner v. B ay City, Tex. , 227 F.3d 316, 324 ( 5th Cir. 2 0 0 0 ) (footnote omitted) (analogizing to a post-trial prisoner’s Eight Amendment protection from cruel and unusual punishment). “Liability for failing to provide

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such care attache s i f t he plaintiff can show that a state official acted with deliberate indifference to a s u bstant i a l risk of serious m edical harm and that injuries resulted.” Id. (citation omitted). “Deliberate indifference require s that the official h ave subjective kn o w l e d ge of the risk of harm.” Id. (citation and internal quotation marks omitted). “Mere negligence will not suffice, and d eliberate indifference, i.e., the subjecti v e intent to cause harm, cannot be inferred from a failure to act reasonably.” I

d. (alterations, citations, and internal quotation m arks omitted). “To show subjective deliberate indifference, a plaintiff must present evidence”: (i) “that each d efendant had subjective knowledg e o f f acts from which an inference of substantial risk of serious harm could be drawn”; (ii) “ t hat each defendant actua l l y d r e w t h a t i n f e r e n c e ” ; a n d ( i ii) “ that each defendant’s response to t he risk indicates t hat the [defendant] s ubjectively intended that harm occur.” Tamez v. Manthey , 589 F.3d 7 64, 770 (5th Cir. 2009) (per curiam) (citation and internal quotation marks omitted). “Deliberate indifference is an extremely high standard to meet.” Domino

v. Tex. Dep’t o f C riminal J ustice , 239 F.3d 752, 756 (5th Cir. 2001). “It is indisputable that an incorrect diagnosis by prison medical personnel does not

s u f f i c e to state a claim f or deliberate i ndifference.” Id. (citation omitted). “Rather, the plaintiff must show that the officials refused to treat him, ignored his complaints, intentionally treated him incorrectly, or engaged in any similar cond u c t t hat would clearly evince a w anton disregard for any serious medical needs.” Id. (citation and internal quotation marks omitted). A prison medical official’s “failure to alleviate a si g nificant risk t hat t h e official should have perceived, but did not is i nsufficient to s h ow deliberate indifference.” I d. (citing Farmer v. Brennan , 5 11 U.S. 825, 838 (1994)) (alteration and internal quotation marks omitted).

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Indeed, “ the question whether

. . . additional d i a g n o stic techniques or forms of treatment is indicated is a classic example o f a matter f or medical judgment.” Estelle v. Gamble , 429 U .S. 97, 1 07 (1976). The medical decision not to order additional diagnostic techniques o r f orms of treatment d oes not represent deliberate indifference to a m edical risk. See id. “At most it is medical malpractice, and a s s u ch the proper forum is the state court under the Texas Tort Claims Act.” Id. (citing Tex. R ev. Civ. Stat. Ann. art. 6252-19, § 3 (West 1976), and noting that “this statute can be used by prison e rs to assert malpractice claims”). 6 2. Analysis T h e tension of this issue is as follows: It i s true that the mere provis i o n of medical treatment does not per se preclude a finding o f d e l i berate i ndifference, and that deliberate indifferenc e m a y be found if the treatment p rovided evidences (i) t he conscious disregard o f (ii) a serious medical need. See Lawson

v. Dallas Cnty. , 286 F.3d 257, 262-63 ( 5th Cir. 2 002). 7 H ere, the magistrate judge from the Eastern District of Texas—a layman with respect to the medical field—found Blank’s need f or treatment so apparent that he orde r ed Blank’s monitored release from pre-trial detention. Notwithstanding the magistrate judge’s o rder, it only en sures that a deliberate indifference finding i s n o t p er s e precluded. Blank still must have

6 In 1985, the Texas legis lature rep ealed Article 6252- 19, and re- cod if ied it as p art of the new ly- enacted Civil Practice and Rem ed ies Cod e. This rep eal and re- cod if ication w as p art of “a top ic- by- top ic revis ion of the s tate’s g eneral and p e rm anent s tatute law w ithout
s ubs tantive change. ” See Tex. Civ. Prac. & Rem

. Cod e Ann. § 1. 001( a) ( Wes t 2013)

. Section 3 of Article 6252- 19 was s cattered am ong m ultip le s ections of the Civil Practice and R em ed ies Cod e. See i d. D is p os ition Table. H ow ever, the corres p ond ing p rovis ion that is ap p licable here
can be found at Section 101. 021. S ee i d. § 101. 021 ( “G overnm ental Liability”)

.

7 “ A s erious m ed ical need is one f or which treatm ent has been recom m end e d o r f o r w hich the need is s o ap p arent that even laym en w ould recognize that care is required

. ” G obert
v
. Ca l dw el l , 463 F. 3d 339, 345 n. 12 ( 5th Cir. 2006) ( citation om itted )

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pled “sufficient factual matter, accepted as true, to state a claim to relief that is
p l a u s ible on its face.” Iqbal , 556 U.S. at 678 (citation and internal quotation marks omitted). We assume without d eciding that the magistrate judge’s order is tantamount to a finding t hat B lank established a s ufficient basis for the “serious medical need” p rong from Lawson

. Blank, howev e r , s t i ll makes no a llegation sufficient to satisfy the “conscious disregard” prong. To state a facially plausible claim against Sandknop, Blank must satisfy both prongs from Lawson

. Sandknop examined Blank on August 11, 2009, Augus t 2 6 , 2 0 0 9 , F e b r uary 23, 2010, and March 9, 2010. As doc u m e n t e d above, Blank a lleges that Sandknop r e m oved him from his pre-detention C r o hn’s medications, failed to

con d u c t a full physical examination, and f ailed to prescribe appropriate replacement Crohn’s medications, causing, inter alia , permanent scarring of Blank’s small intestin e a nd p ermanent d amage to his kidneys. Additionally, Blank alleges that Sandknop failed to check him for intestinal swe l l i n g and refused t o refer him t o a s p e cialist. This is the f ull extent of the facts Blank alleges against Sandknop. T he remaining facts alleged in B lank’s complaint are applicable only to Bell. Without more—ev e n a c c o unting for the fact that B lank is a pro se litigant—Blank cannot n ot establish “conscious disregard” on the part of Sandknop. Like the l itigant i n Gamble , Blank perhaps could establish serious

m e dical malpractice in a Texas Tort Claims Act a ction. However, he may n o t

use Section 1983 to assert deliberate indifference without stating even a single non-conclusory allegation of “conscious disregard” of the applicable standard of

care (as opposed to simple d eviation—even gross d e viation—from that standard). 8

8 This is not to p re- j ud g e the s uf f iciency of a Section 1983 claim agains t Bell, agains t
w hom Blank m ay have suf f iciently alleged “cons cious d is regard

. ” Since it is not bef ore us , w e 9 Case: 12-10484 Document: 00512280730 Page: 9 Date Filed: 06/19/2013N os. 12-10484 c/w 12-10539

The district court rightly dismissed Blank’s c la i m a gainst S andknop for deliberate indifference to medical risk. B. Claims Against Eavenson and Guzik 1. Claims for Inadequate Training/Supervision “Under section 1983, supervisory officials are not liable for the a ctions of subordinates on any theory of vicarious liability.” Thompkins v. Belt , 828 F.2d 298, 303 (5th C ir. 1987) (citations omitted). Nevertheless, a s upervisor may be held l i a ble for the actions of subordinate s i f : ( i ) “ the [supervisor] failed to supervise or t rain the [ subordinate]”; (ii) “a causal c onnection existed between t h e f ailure to supervise or train and the violation of the plaintiff’s rights”; a n d (iii) “the failure to supervise o r t rain amounted to deliberate indifference to the plaintiff’s c onstitutional r ights.” R oberts v. City of Shreveport , 397 F.3d 287, 292 (5th Ci r
. 2005) (citing, inter alia , City of Canton, Ohio v. Harris , 489 U.S. 378 (1989)). A claim for failure t o train o r s upervise still requires “ o vert p ersonal participation” by the supervisor—in that the supervisor must have o vertly failed to train or supervise the subordinate, even i f it w a s the s ubordinate who directly acted to inflict the constitutional deprivation u p on the plaintiff. C f. Thompkins , 828 F.2d at 304. Here, Blank did not plead allegations against Eavenson and Guzik suff i c i e n t to form the basis of a claim u nder Roberts and Thompkins

. Rather, Blank’s allegations r equire the Court to infer a nd spec u l a t e a s to any alleged failures to train or supervise. As the Jail’s administrator, perhaps Guzik should have anticipated—or at least known of—Be l l and S a ndknop’s a lleged m isdeeds. After all, Bell was Guzik’s employee a nd Sandknop was Guzik’s contractor. Speculation, h owever, is not the applicable pleading standard. See Twombly , 550 U.S. at 555 (citations

reach no d ef

initive conclus ion as to that ques tion. 10 Case: 12-10484 Document: 00512280730 Page: 10 Date Filed: 06/19/2013N os. 12-10484 c/w 12-10539

and footnote omitted). Without a single allegation t h at Guzik had constructive knowledge o f Bell a n d S a n dknop’s alleged f ailings, let a lone t h at Guzik was deliberately i ndifferent to such k n o wledge or t hat additional training or supervisio n w o uld h ave made a difference, Blank c annot state a cognizable claim against Guzik under Roberts and Thompkins

. Any claim against Eavenson i s e ven more speculative. Relative to Guzik, Eavenson (Rockwall County’s Sheriff) is even f u r t her removed from Bell and Sandknop’s activities a t the Jail. Eavenson’s o nly conceivable c o nnection to Blank’s complained-of a ctivities is that Sheriff’s D eputies had escorted B lank to his March 2 2, 2010 examination by a gastrointestinal specialist, who had advised that B lank be admitted to a hospital f or u n interrupted treatment. Blank alleges that Bell declined to comply with the specialist’s advice. Let us assume arguendo , without deciding, that B e l l i ndeed failed to comply with the specialist’s advice, and that s uch f a ilure was tortious. Blank still did not allege t h at the Sheriff’s Deputies would o r should have k nown that B e l l failed to comply, or that Eavenson would or should have learned t h a t information from t h e D e p uties. Eavenson is simply too far r emoved from Bell and Sandknop’s alleged conduct, at least as stated in B lank’s pleadings. Accordingly, Blank cannot state a cognizable claim against Eavenson u n d er Roberts and Thompkins

. The district court r ightly dismissed Blank’s claims against Eavenson and Guzik for inadequate training/supervision. 2. Claims f

or Delibera t e Indifference t o Inadequate Supervision “Supervisory l iability e xists even without overt p e rsonal participation in the o ffensive act if supervisory officials implement a policy so deficient that the policy itself is a repudiation of constitutional rights and is the moving force of [a] constitutional violation.” Thompkins , 828 F.2d at 304 (citing, inter alia , Monell

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v
. Dep’t of Soc. S ervs. of N.Y.C. , 436 U.S. 658 (1978)) (footnote and internal quotation m arks omitted). 9 In order to be liable on such a theory of deliberate indifference to inadequate s upervision, the supervisory officials must have had actual or constructive knowledge of the deficient policy at issue. S e e Bennett , 735 F.2d at 862. Here, in P aragraph 6 of his complaint, Blank alleged that Eavenson had violated his Due Process rights “with deliberate indifference” b y “fail[ing] to create a policy to p rotect those rights” and by “fail[ing] to enforce a policy already created that would have [prote c t e d those rights].” In Paragraph 7 of his complaint, Blank s tated an identical allegation against Guzik. Nowhere in his complaint, nor in his response / s u r - r e p ly to the motions to dismiss, did Blank meaningfully develop these general allegations. “[C]onclusory allegations w i ll n ot suffice to p r event a m otion to dismiss, and neither will unw a r r anted deductions of fact.” Willard , 336 F.3d at 379 (alteration, citation, and internal quotation marks omitted). Therefore, the district court rightly dismissed Blank’s claims against Eavenson and Guzik for deliberate indifference to inadequate supervision. V. CONCLUSION For the foregoing reasons, we AFFIRM the final judgments of t he district court.

9 A p olicy includ es a “p ers is tent, w id es p read p ractice of [m unicip al] of f icials or em p loyees , w hich, although not authorized by of f icially ad op ted and p rom ulgated p olicy, is so com m on and w ell s ettled as to cons titute a c u s t om that f airly rep res ents m unicip al p olicy. ” See Bennett v
. Ci ty of Sl idel l , 735 F. 2d 861, 862 ( 5th Cir. 1984) ( en banc) ( p er curiam )

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