IN THE

TENTH COURT OF APPEALS

No. 10-12-00011-CV

ABBAS KHOSHDEL, M.D., 

LLOYD ASCHBERGER, TERRI

PURSLEY, AND JAMIE WILLIAMS,

Appellants

v.

CHARLES GOOSBY,

Appellee

From the 12th District Court

Walker County, Texas

Trial Court No. 24,620

MEMORANDUM OPINION

In this interlocutory appeal, Appellants Abbas Khoshdel, M.D., Lloyd 

Aschberger, P.A., Terry Pursley, and Jamie Williams1 appeal the trial court’s denial of 

their motion for summary judgment on their qualified-immunity affirmative defense to 

Appellee Charles Goosby’s claim for deliberate indifference to a serious medical need.

Goosby, an inmate at the Wynne Unit in Huntsville, sued Dr. Khoshdel and 

 

1 The Texas Department of Criminal Justice was also sued, but it is not a party to this interlocutory 

appeal.
Khoshdel v. Goosby Page 2

Aschberger, a physician’s assistant, for their role in the treatment of Goosby’s broken 

arm in the Wynne Unit. He sued Pursley (an administrative associate in the Wynne 

Unit infirmary) and Williams (a practice manager in the Wynne Unit infirmary) because 

they did not act in getting proper medical treatment for him, and he further alleged that

Williams failed to process his medical grievance as an emergency grievance. 

Appellants moved for summary judgment on their affirmative defense of 

qualified immunity from suit on Goosby’s deliberate-indifference claim.

Section 1983 creates a private right of action to vindicate violations 

of rights, privileges, and immunities secured by the Constitution and laws 

of the United States. Rehberg v. Paulk, 132 S.Ct. 1497, 1501 (2012). A prison 

official’s deliberate indifference to a substantial risk of serious harm to a 

prisoner violates the Eighth Amendment’s prohibition against cruel and 

unusual punishment. Farmer v. Brennan, 511 U.S. 825, 828 (1994); Estelle v. 

Gamble, 429 U.S. 97, 104 (1976). Deliberate indifference is an extremely 

high standard to meet. Gobert v. Caldwell, 463 F.3d 339, 346 (5th Cir. 2006). 

To establish deliberate indifference, a prisoner must show that the prison 

official knew of and disregarded an excessive risk to the prisoner’s health 

or safety. Farmer, 511 U.S. at 837. The prisoner must show both that the 

official was aware of facts from which the inference could be drawn that a 

substantial risk of serious harm existed and that the official actually drew 

the inference. Id.

Heirs of Del Real v. Eason, 374 S.W.3d 483, 486-87 (Tex. App.—Eastland 2012, no pet. h.).

“An official’s failure to perceive and to alleviate a risk is not an infliction of 

punishment. Moreover, negligent medical treatment is not a violation of section 1983.” 

Tex. Dep’t of Crim. Justice v. Thomas, 263 S.W.3d 212, 219 (Tex. App.—Houston [1st Dist.] 

2007, pet. denied) (citations omitted). Evidence of inadvertent failure to provide 

medical care or negligent diagnosis is insufficient to establish “unnecessary and wanton 

infliction of pain” in violation of the Eighth Amendment. Cole v. Frizzell, No. 13-07-
Khoshdel v. Goosby Page 3

00092-CV, 2008 WL 4117216, at *3 (Tex. App.—Corpus Christi Aug. 14, 2008, no pet.) 

(mem. op.) (citing Wilson v. Seiter, 501 U.S. 294, 297, 111 S.Ct. 2321, 115 L.Ed.2d 271 

(1991) (holding that “inadvertent failure to provide adequate medical care” fails to 

establish the requisite culpable state of mind)).

“[T]he facts underlying a claim of ‘deliberate indifference’ must 

clearly evince the medical need in question and the alleged official 

dereliction.” Johnson v. Treen, 759 F.2d 1236, 1238 (5th Cir. 1985) (citing 

Woodall v. Foti, 648 F.2d 268 (5th Cir. 1981)); County of El Paso, 180 S.W.3d 

at 863 (holding that an inmate must prove that a jail official was 

subjectively aware of facts from which an inference could be drawn that a 

substantial risk of serious harm existed and that the jail official actually 

drew such an inference). Specifically, a plaintiff must demonstrate that 

prison officials “refused to treat him, ignored his complaints, intentionally 

treated him incorrectly, or engaged in any similar conduct that would 

clearly evince a wanton disregard for any serious medical needs.” Domino 

v. Tex. Dep't of Criminal Justice, 239 F.3d 752, 756 (5th Cir. 2001) (quoting 

Johnson, 759 F.2d at 1238); County of El Paso, 180 S.W.3d at 863. Medical 

records of sick calls, examinations, diagnoses, and medications may rebut 

an inmate’s allegations of deliberate indifference. Banuelos, 41 F.3d at 235 

(citing Mendoza v. Lynaugh, 989 F.2d 191, 193-95 (5th Cir. 1993)); County of 

El Paso, 180 S.W.3d at 868.

Davis v. Barnett, No. 02-09-00207-CV, 2010 WL 3075670, at *4 (Tex. App.—Fort Worth 

Aug. 5, 2010, no pet.) (mem. op.).

Qualified or official immunity from suit is available ... to government 

officials sued in their individual capacities under section 1983. Harlow v. 

Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727 (1982); see also City of Hempstead 

v. Kmiec, 902 S.W.2d 118, 120 n.1 (Tex. App.—Houston [1st Dist.] 1995, no 

writ) (noting that “the term ‘official immunity’ is confusing because 

official immunity covers acts performed by a government official in the 

person’s individual capacity, not in the person’s official capacity”). 

Government officials performing discretionary functions have qualified 

immunity from a suit for damages under section 1983 so long as the 

official’s conduct does not violate clearly established constitutional or 

statutory rights of which a reasonable person would be aware. Padilla v. 

Mason, 169 S.W.3d 493, 502 (Tex. App.—El Paso 2005, pet. denied); Scott v. 

Britton, 16 S.W.3d 173, 180 (Tex. App.—Houston [1st Dist.] 2000, no pet.). 
Khoshdel v. Goosby Page 4

A legal right is “clearly established” when the “contours of the right [are] 

sufficiently clear that a reasonable official would understand that what he 

is doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640, 107 

S.Ct. 3034, 3039 (1987). 

When a governmental official asserts the affirmative defense of 

qualified immunity by pleading good faith and demonstrating that his 

actions were within his discretionary authority, the summary judgment 

burden shifts to the plaintiff to show that the defendant’s conduct violated 

clearly established statutory or constitutional rights of which a reasonable 

person would have been aware. Newman v. Kock, 274 S.W.3d 697, 705 

(Tex. App.—San Antonio 2008, no pet.); Thomas v. Collins, 860 S.W.2d 500, 

503 (Tex. App.—Houston [1st Dist.] 1993, writ denied). The plaintiff must 

show: (1) the official’s conduct violated a federally guaranteed right; (2) 

the right was clearly established; and (3) the official’s conduct was 

objectively unreasonable in light of the clearly established right. Thomas, 

860 S.W.2d at 503. Objective reasonableness is a question of law for the 

court when deciding qualified immunity in a section 1983 action. Hare v. 

City of Corinth, 135 F.3d 320, 328 (5th Cir. 1998); see also Poteet v. Sullivan, 

218 S.W.3d 780, 792 (Tex. App.—Fort Worth 2007, pet. denied) 

(recognizing that objective reasonableness is a matter of law).

Hill v. Trinci, No. 14-10-00862-CV, 2012 WL 3016855, at *3-4 (Tex. App.—Houston [14th 

Dist.] July 24, 2012, no pet. h.) (mem. op.); see also Livingston v. Taylor, No. 13-07-00690-

CV, 2009 WL 2397542, at *2-3 (Tex. App.—Corpus Christi Aug. 6, 2008, no pet.) (mem. 

op.); Thomas, 263 S.W.3d at 219.

In deciding whether the medical staff was entitled to qualified 

immunity, we apply a bifurcated analysis. Saucier v. Katz, 533 U.S. 194, 

201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001)[, overruled in part by Pearson v. 

Callahan, 555 U.S. 223, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009)]. First, we 

determine whether the medical staff’s alleged conduct violated a 

constitutional right. Id. Second, we determine whether the right was 

clearly established; that is, whether it would be clear to a reasonable 

official that his conduct violated that right. Id. The threshold question is 

whether the facts alleged, taken in the light most favorable to the party 

asserting the injury, show that the officer's conduct violated a 

constitutional right. Id. If the facts do not show a constitutional violation, 

the official is entitled to immunity. Id. If, on the other hand, violation of a 

constitutional right is shown by the facts alleged, the next step is to 
Khoshdel v. Goosby Page 5

determine whether that right was clearly established at the time of the 

alleged violation. Id.

McBride v. Tex. Dep’t of Crim. Justice, No. 13-07-00130-CV, 2008 WL 3971102, at *3 (Tex. 

App.—Corpus Christi Aug. 28, 2008, pet. denied) (mem. op.). Courts now have 

discretion in deciding which of the two prongs of the Saucier qualified-immunity 

analysis should be addressed first. Pearson, 555 U.S. at 236, 129 S.Ct. at 818.

The summary-judgment evidence consists of Goosby’s prison medical records 

and grievances, the affidavit of Bobby Vincent, M.D., the Huntsville District Medical 

Director for the University of Texas Medical Branch, Correctional Medical Care (UTMBCMC), and the affidavit of Isaac J. Saxon, Jr., the Cluster/District Practice Manager for 

the Northwest District of the University of Texas Medical Branch, Correctional Medical 

Care.

It is undisputed that Goosby fell in the shower and fractured his right arm (distal 

radius) in the early morning hours of July 18, 2008. Within hours of the fall, Goosby 

was transported by van to the East Texas Medical Center Trinity Hospital (a “freeworld” hospital), where he received an x-ray, a splint, and a recommendation that he be 

given Tylenol #3 for pain. Aschberger evaluated Goosby later that day and ordered 

additional x-rays, Darvocet N-100 (a narcotic pain reliever similar to Tylenol #3), Motrin 

(800 mg), and continued use of the splint. Aschberger also submitted an expedited 

request for a consultation with an orthopedist with UTMB-CMC in Galveston. The 

evidence then reflects the following events:

 On July 21, Aschberger reevaluated Goosby, ordered a cast for four weeks, reordered the pain medication, and advised Goosby to keep his appointment with 
Khoshdel v. Goosby Page 6

the UTMB orthopedist. Goosby ended up missing this initial appointment 

because of a norovirus outbreak at the Wynne Unit that led to a unit-wide 

quarantine and lockdown. Over the next two days, Aschberger changed 

Goosby’s work restriction so that he was medically unassigned to work, and 

Aschberger ensured that Goosby had access to the Darvocet at the “pill 

window.”

 On August 4, Goosby complained of pain, and the next day Aschberger saw him 

and not only ordered the requested medication but changed Goosby’s housing 

restriction to include a low-bunk restriction and ground restriction.

 On August 19, Dr. Abbas Khoshdel evaluated Goosby. Because Goosby had 

missed his initial appointment, Dr. Khoshdel submitted a second request for an 

expedited consultation with a UTMB orthopedist.

 On September 3, Goosby submitted an I-60 requesting that Dr. Khoshdel submit 

another request for an expedited consultation with a UTMB orthopedist because 

Goosby had again missed his scheduled appointment, this time because of 

Hurricane Gustav, which caused the temporary closure of the UTMB facility in 

Galveston. 

 On September 15, Goosby submitted another I-60, again requesting that Dr. 

Khoshdel submit request for an expedited consultation with a UTMB orthopedist 

and referring to another storm. This reference was to Hurricane Ike, which 

struck Galveston on September 13 and caused major damage to the UTMB 

facility, which had been evacuated and had to close because of the damage.

 On October 3, Aschberger saw Goosby, removed the cast, and took further x-rays 

to check on the arm’s healing status. He also recommended Naprosyn for pain.

 On October 9, Aschberger followed up with Goosby upon receiving the 

radiology report from the October 3 x-rays and gave Goosby a 90-day medical 

pass. Aschberger also submitted another expedited request for an orthopedist 

consultation, noting that Goosby’s previously scheduled appointments had been 

canceled because of the norovirus quarantine and the hurricanes.

 On October 16, Goosby submitted an I-60 complaining of pain and requesting 

reapplication of the cast. Aschberger saw Goosby the next day, ordered and 

applied a splint, and recommended continued use of Naprosyn.

 On October 23, Goosby was seen via Digital Medical Services (DMS), a means of 

seeing the patient via video by staff at a remote unit, by the UTMB Galveston 

orthopedics staff. He was diagnosed with a non-union of the distal right radius, 
Khoshdel v. Goosby Page 7

and surgery was recommended and was to be scheduled for mid-November. Dr. 

Natividad, the orthopedic surgeon, had apparently anticipated that the UTMB 

hospital in Galveston would be reopened by then, but it remained officially 

closed until January 2009. The closure led to a surgery backlog, and Goosby’s 

surgery did not occur until February 5, 2009.

 On November 21, Goosby submitted an I-60 complaining of pain and inquiring 

whether his surgery had been scheduled. He was informed that the UTMB 

hospital in Galveston was not operational and was being repaired and that the 

scheduling would be handled when the hospital returned to full operation.

 On December 1, Goosby filed a Step 1 Grievance complaining of the delays in 

treatment and requesting that he be sent to an outside facility for treatment. 

Pursley informed Goosby that the grievance was forwarded to the medical 

department. Williams responded by noting Goosby’s prior treatment, the 

cancelled appointments and their reasons, and that his surgery was scheduled at 

that time for January 2009.

 On December 2, Goosby complained again of pain and was prescribed the antiinflammatory drug Mobic by Michael Dome, another physician’s assistant. 

Dome also found that a referral to a “free-world” medical facility was not 

necessary.

 On December 21, Goosby submitted an I-60 requesting renewal of his expiring 

prescription and splint pass. Aschberger saw Goosby the next day and renewed 

both items.

 On December 23, Dr. Khoshdel ordered an x-ray in preparation for Goosby’s 

December 27 DMS visit with the orthopedics staff.

 On January 11, 2009, Goosby complained again of pain, and on January 14 was 

prescribed Nortiptyline.

 On February 5, 2009, Goosby underwent open reduction internal fixation 

surgery.

In his affidavit, Dr. Vincent states that UTMB-CMC is contracted to provide 

health care to TDCJ offenders (inmates) and that CMC Scheduling in Galveston makes 

all specialty (such as orthopedics) appointments and surgical scheduling. No unit 

physician, physician’s assistant, practice manager, or administrative assistant has the 
Khoshdel v. Goosby Page 8

ability to schedule or prioritize specialty appointments or surgeries. Dr. Vincent further 

states that, because Goosby’s arm was either in a cast or a splint, he did not have an 

acute medical condition that would have qualified him to be sent to a “free-world” 

hospital.

In their first issue, Appellants assert that Goosby has not established deliberate 

indifference to a serious medical need. The gist of Goosby’s deliberate-indifference 

claim against Appellants is that they delayed surgery and that they (including Williams 

and Pursley)2 failed to send him to a “free-world” hospital for surgery during the time 

when he could not be surgically treated at UTMB Galveston.

Indulging all reasonable inferences in favor of Goosby and taking all evidence 

favorable to him as true, we conclude that Appellants met their burden of showing that 

there is no genuine issue of material fact and that they are entitled to judgment as a 

matter of law on the issue of qualified immunity. The summary judgment evidence 

does not indicate that Appellants were deliberately indifferent to Goosby’s medical 

needs. 

A delay in medical care violates the Eight Amendment only if it is due to 

deliberate indifference and the delay results in substantial harm. Mendoza v. Linaugh,

989 F.2d 191, 195 (5th Cir. 1993); see also Smith v. Harris, 401 Fed. Appx. 952, 953 (5th Cir. 

 

2

In his brief, Goosby asserts that Williams and Pursley had the authority to send him to a “free-world” 

facility. We assume without deciding that they did, but we also hold that, in their administrative roles, 

including their processing of Goosby’s grievance, Goosby has not demonstrated deliberate indifference to 

his medical needs in violation of his constitutional rights. See Criollo v. Milton, 414 Fed. Appx. 719, 721 

(5th Cir. 2011) (affirming dismissal of deliberate-indifference claim against prison’s practice manager and 

program administrator because their role in grievance process was no role in inmate’s medical treatment); 

see also Marquez v. Woody, 440 Fed. Appx. 318, 322 (5th Cir. 2011) (affirming summary judgment on 

deliberate-indifference claim against prison’s practice manager, who had no role in providing medical 

care to inmate).
Khoshdel v. Goosby Page 9

2010). As for the missed and delayed appointments and the delayed surgery, the record 

is plain that Appellants had no control over scheduling with UTMB-CMC, and Goosby 

has not shown deliberate indifference for that reason. Goosby also cannot show 

deliberate indifference for the delayed surgery because the record shows that delays 

were caused by a virus quarantine, two hurricanes, and the closure of the UTMB 

Galveston hospital for months because of the damage caused by Hurricane Ike.

Furthermore, “the plaintiff must show that the officials ‘refused to treat him, 

ignored his complaints, intentionally treated him incorrectly, or engaged in any similar 

conduct that would clearly evince a wanton disregard for any serious medical needs.’” 

Domino v. Tex. Dep’t of Crim. Justice, 239 F.3d 752, 756 (5th Cir. 2001). The evidence in 

this case plainly shows that Goosby consistently received medical care (x-rays, a cast 

and splints, and medication) while he was waiting for surgery. See Fails v. DeShields,

349 Fed. Appx. 973, 976 (5th Cir. 2009) (“Deliberate indifference is especially hard to 

show when the inmate was provided with ongoing medical treatment.”).

As for Goosby’s primary complaint that Appellants should have sent him to a 

“free-world” hospital for surgery when he was unable to have surgery at UTMB 

Galveston, the only summary judgment evidence is Dr. Vincent’s affidavit testimony 

that, because Goosby’s arm was either in a cast or a splint, he did not have an acute 

medical condition that would have qualified him to be sent to a “free-world” hospital. 

Goosby’s disagreement with this medical judgment cannot establish deliberate 

indifference. “An inmate’s disagreement with the kind of medical treatment that he has 

received is insufficient as a matter of law to state an Eighth Amendment violation.” 
Khoshdel v. Goosby Page 10

County of El Paso v. Dorado, 180 S.W.3d 854, 868 (Tex. App.—El Paso 2005, pet. denied) 

(citing Norton v. Dimazana, 122 F.3d 286, 291 (5th Cir. 1997), and Young v. Gray, 560 F.2d 

201, 201 (5th Cir. 1977)); see Lagaite v. Uy, 347 S.W.3d 890, 892 (Tex. App.—Amarillo 

2011, no pet.) (“While it is true that inmates are entitled to medical care, they are not 

entitled to the type of care they choose.”) (citations omitted).

The summary judgment evidence does not indicate that Appellants knew of and 

disregarded an excessive risk to Goosby’s health or safety. Therefore, Goosby failed to 

demonstrate deliberate indifference to his medical needs in violation of his 

constitutional rights. Having failed to find such a violation, our analysis is complete. 

See McBride, 2008 WL 3971102, at *4 (citing Saucier, 533 U.S. at 201, 121 S.Ct. at 2156). 

Appellants are entitled to qualified immunity from suit on Goosby’s claims. 

Appellants’ first issue is sustained, and we reverse the trial court’s denial of their 

motion for summary judgment. We render judgment that Goosby take nothing on his 

section 1983 claim against Appellants because they have qualified immunity from suit. 

We remand this case for further proceedings consistent with this opinion.

REX D. DAVIS

Justice

Before Chief Justice Gray,

Justice Davis, and

Justice Scoggins

Reversed and rendered and remanded

Opinion delivered and filed November 1, 2012

[CV06]