IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 18-30610

JOSEPH DAUZAT, 

 Plaintiff - Appellee

v.

BESSIE CARTER, RN - CCN/M - Director of Nursing; LAURA BUCKLEY, 

LPN; CASEY MCVEA, Doctor, 

 Defendants - Appellants

Appeal from the United States District Court

for the Eastern District of Louisiana

USDC No. 2:14-CV-239

Before CLEMENT, OWEN, and HO, Circuit Judges.

PER CURIAM:*

This is the second time that the defendants have appealed the district 

court’s denial of qualified immunity. The district court initially denied 

immunity at the motion to dismiss stage. That decision was affirmed by this

court on interlocutory appeal. See Dauzat v. Carter, 670 F. App’x 297 (5th Cir. 

2016) (per curiam). Following discovery, the defendants again claimed 

 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

February 7, 2019

Lyle W. Cayce

Clerk

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No. 18-30610

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immunity at the summary judgment stage. The district court again denied 

their motion. The defendants now seek interlocutory review for a second time. 

Constrained by our first ruling, we again affirm.

The crux of Joseph Dauzat’s § 1983 claim is that the defendants—two 

nurses and a doctor at the prison where Dauzat is incarcerated—were 

deliberately indifferent to his medical needs. On their first appeal, the 

defendants argued that Dauzat “did not allege facts indicating that their 

actions rose to the level of egregious intentional conduct required to satisfy the 

deliberate indifference standard.” See id. at 298. A separate panel of this court 

disagreed, explaining how the allegations against each defendant were 

sufficient to state a claim.

As to Nurse Buckley, the panel held:

Dauzat complained of symptoms that should have put Buckley on 

alert to a serious medical condition that was “so apparent that 

even a layman would recognize that care [was] required.” See 

Gobert v. Caldwell, 463 F.3d 339, 345 n.12 (5th Cir. 2006). Further, 

Buckley’s failure to refer Dauzat to a physician was not objectively 

reasonable conduct.

Id.

With respect to Doctor McVea, the panel held:

The district court did not err in denying Dr. McVea’s motion to 

dismiss based on the court’s determination that Dauzat stated an 

Eighth Amendment claim and that a reasonable physician in Dr. 

McVea’s position would understand that the failure to provide 

physical therapy as ordered violated Dauzat’s clearly established 

constitutional right.

Id.

And finally, with respect to Nurse Carter, the panel held:

As the Director of Nursing, Carter was aware that the wellness 

program was run by inmates and was not the equivalent of the 

physical therapy ordered by the neurosurgeon for Dauzat. 

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[Accordingly, t]he district court did not err in denying Carter’s 

motion to dismiss based on qualified immunity as the court 

determined that Dauzat had stated a valid Eighth Amendment 

claim and that a reasonable nurse in Carter’s position would have 

understood that the failure to provide physical therapy as ordered 

violated Dauzat’s clearly established constitutional right.

Id.

The defendants continue to believe that their conduct did not violate 

clearly established law. Even viewing the evidence in the light most favorable 

to Dauzat and drawing all reasonable inferences in his favor, they contend 

their behavior was objectively reasonable. And by the defendants’ own 

admission, “[t]he facts which are disputed are minor and immaterial to the 

question of qualified immunity before the Court.” And so this court is presented 

with purely legal issues. The “core of the question” presented by this appeal, 

as the defendants characterize it, is whether the district court “incorrectly 

identified the particular constitutional rights at issue in this case for the 

purpose of the qualified immunity analysis.”

The only problem with the defendants’ position is that this court cannot 

endorse it without overruling the prior panel. Although discovery has occurred, 

the facts adduced do not differ meaningfully from the facts this court assumed 

to be true at the motion to dismiss stage. There have been no groundbreaking 

discoveries or revelations. Excepting two instances, the parties largely agree 

on what occurred. The new evidence relied on by the defendants operates

mainly as an attempt to explain and rationalize their behavior. The material 

facts recited by the district court in its original opinion denying qualified 

immunity at the motion to dismiss stage remain almost entirely unrebutted.

Now, as then, the essential disagreement between the parties is whether 

those facts provide Dauzat with a viable § 1983 claim. The district court and 

the original appellate panel sided with Dauzat. “The law-of-the-case doctrine 

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generally provides that when a court decides upon a rule of law, that decision 

should continue to govern the same issues in subsequent stages in the same 

case.” Musacchio v. United States, 136 S. Ct. 709, 716 (2016) (internal 

quotation marks and citations omitted). Accordingly, the defendants’ 

arguments are foreclosed.

As a final note, to address the defendants’ concern that the court’s ruling 

in this case—if allowed to stand—will have far-reaching negative 

consequences, we are not troubled. The defendants argue that upholding the 

interpretation already embraced by the previous panel will provide inmates 

with a new constitutional right to immediate attention by a doctor and a right 

to continuous off-site or professional medical care. But the summary calendar 

opinion that affirmed the district court on the prior appeal was unpublished 

and is therefore without precedential effect (except insofar as the law-of-thecase operates on this dispute). See 5th Cir. R. 47.5.4. Moreover, its terse

approval of the magistrate’s opinion contains little reasoning that would 

enable future courts to follow its lead. In short, the panel’s opinion will have 

no effect beyond the present case.

AFFIRMED.

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