United States Court of Appeals

for the Fifth Circuit

No. 21-40621

Christopher Irby, 

Plaintiff—Appellant,

versus

Doctor Marcus Hinkle, 

Defendant—Appellee.

Appeal from the United States District Court 

for the Southern District of Texas

USDC No. 3:19-CV-90

Before Jones, Willett, and Douglas, Circuit Judges.

Per Curiam:*

Christopher Irby, an inmate confined at the Darrington Unit of the 

Texas Department of Criminal Justice, filed a 42 U.S.C. § 1983 suit against 

Dr. Marcus Hinkle in which Irby alleged that Dr. Hinkle was deliberately 

indifferent to Irby’s medical needs by initially providing inadequate 

treatment and then by delaying further medical treatment for facial injuries 

incurred after a fall from the top of a bunk bed. For the reasons provided 

* This opinion is not designated for publication. See 5th Cir. R. 47.5.

United States Court of Appeals

Fifth Circuit

FILED

March 15, 2023

Lyle W. Cayce

Clerk

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herein, we AFFIRM the district court’s grant of summary judgment to Dr. 

Hinkle. 

I. 

Irby alleged that on November 4, 2017, he fell off the top bunk in his 

cell and experienced periods of unconsciousness while being transported to 

the infirmary. He also stated that the left side of his face was swollen, his 

nose was bleeding, and he was experiencing dizziness. According to Irby, 

Nurse Shanika Walker took his vital signs and contacted the on-call 

physician, Dr. Hinkle. Without examining him, Dr. Hinkle instructed the 

nurse to give ibuprofen to Irby and tell him to “be careful.” Irby claimed that 

Dr. Hinkle declined Nurse Walker’s request to send Irby to the emergency 

room. 

Irby stated that he requested additional medical care during the two 

weeks after his fall, but the requests were denied. After purportedly

submitting several I-60 forms (Inmate Requests to an Official), an 

appointment was made for November 16, 2017. According to the complaint, 

during the appointment, Dr. Hinkle observed the swelling on Irby’s face but 

concluded that x-rays were unnecessary and instead prescribed additional 

ibuprofen. When Irby “pleaded” for x-rays, Dr. Hinkle relented and ordered 

the imaging. The x-rays were taken on November 17, 2017, but according to 

the complaint, Irby only received a December 7, 2017 appointment1to 

discuss the x-rays after sending two I-60 forms to the medical department, 

specifically to a “Dr. Spears.” During that appointment, Dr. Spears 

informed Irby of the “damages and injuries to [Irby’s] face, as reflected in 

the x-rays” and scheduled an appointment with an otolaryngologist (ENT). 

1

Irby states that the appointment was scheduled for December 7, 2017, but the 

medical records reflect that an appointment occurred on December 6, 2017.

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At the ENT appointment, Irby learned that fractures in his face were 

inoperable due to the lapse in time from the fall. Irby alleged in his suit that 

due to the delay in medical treatment by Dr. Hinkle, the left side of his face 

is permanently deformed and that he continues to suffer numbness. 

In response, Dr. Hinkle filed a Federal Rule of Civil Procedure 12(b) 

motion to dismiss Irby’s § 1983 suit. First, Dr. Hinkle moved under Rule 

12(b)(1) for dismissal of official capacity claims against him based upon 

Eleventh Amendment immunity. Second, he moved under Rule 12(b)(6) for 

dismissal of Irby’s individual capacity claims for failure to state a claim upon 

which relief may be granted. The district court granted the motion in part 

under Rule 12(b)(1) but denied the motion in part under Rule 12(b)(6).

Subsequently, Dr. Hinkle filed a Rule 56 motion for summary 

judgment in which he asserted the defense of qualified immunity, contending 

there was no evidence of any constitutional violation. In support of that 

motion, he submitted various prison records. A November 4, 2017 medical 

note reflected that Irby fell from the top bunk and appeared to Nurse Walker 

complaining only of a headache and bloody nose. Nurse Walker noted that 

the left side of Irby’s face was swollen and that his nose was bleeding. She 

further noted that Irby was alert, could walk and talk, and had normal vital 

signs. Nurse Walker relayed this information to Dr. Hinkle, who prescribed 

ibuprofen and cautioned Irby to “be careful.” 

In a November 7, 2017 Step 1 grievance form, Irby recounted his 

November 4, 2017 appointment and complained of persistent pain from the 

fall, extreme discomfort when chewing food, and continued swelling and 

deformity in his face. Irby stated that prison guards laughed at him when he 

reported the continued pain and did not provide any assistance. In the 

section of the form that asked for the action requested to resolve his 

complaint, Irby stated, “I need medical help! And a bottom bunk.”

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Irby requested further treatment from a “Dr. Spears” in a 

handwritten note stamped as received on November 15, 2017. Irby asserted 

that his cheekbone was “obviously broken” and that he continued to 

experience numbness and pain in his mouth and nose. Specifically, Irby 

asked for x-rays of his face.

In his notes from the subsequent November 16, 2017 appointment, Dr. 

Hinkle noted that the swelling on Irby’s face had resolved, but that he 

continued to experience numbness. Dr. Hinkle did not believe x-rays were 

necessary but nevertheless ordered them. The x-rays revealed that the floor 

of Irby’s left orbit and his left sinus wall were fractured. At a December 6, 

2017 appointment, Terry Speer,2 a nurse practitioner, explained those 

findings to Irby and referred him to an ENT. 

Irby filed an opposition to Dr. Hinkle’s motion in which he reiterated 

his claims of deliberate indifference and attached the notes from his 

December 12, 2017 ENT appointment as an exhibit. The ENT explained 

that “given the timing from [the] injury,” the fractures were likely 

inoperable. 

The district court found that the summary judgment evidence did not 

support a claim that Dr. Hinkle knew of a serious risk of medical harm to Irby 

and ignored that risk. It explained that the medical records did not reflect 

that Irby experienced periods of unconsciousness after the fall and therefore 

rebutted Irby’s claim that this symptom alerted Dr. Hinkle of the substantial 

risk of serious harm. In addition, the district court found no dispute of 

material fact regarding Nurse Walker’s alleged recommendation for Irby to 

2 The appellee’s brief indicates that Terry Speer is the same “Dr. Spears” Irby 

references throughout this litigation. 

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go to the emergency room. It emphasized that the medical records did not 

include or refer to any such recommendation. 

The district court therefore concluded that Irby’s argument regarding 

his initial medical appointment amounted to a disagreement with Dr. 

Hinkle’s treatment plan and that such a disagreement did not present a 

cognizable § 1983 claim. Moreover, it explained that even if the doctor’s 

treatment plan was erroneous, claims of negligence or malpractice also are 

not cognizable § 1983 claims. In sum, the district court determined that 

“[t]he facts taken in the light most favorable to Irby do not raise a genuine 

issue of material fact about whether Dr. Hinkle was aware of objective facts 

that showed a substantial risk to Irby’s health when he considered how to 

treat Irby on November 4” or whether the doctor “inferred that such a risk 

existed and deliberately disregarded it by failing to order Irby’s transport to 

the emergency room.” Because Irby did not carry his burden in negating Dr. 

Hinkle’s qualified immunity defense, it granted Dr. Hinkle summary 

judgment on Irby’s failure-to-treat claim. 

Regarding Irby’s delay-of-treatment claim, the district court noted his 

assertion that he had filed several formal requests for additional medical 

treatment but explained that Irby had not attached any I-60 forms or other 

formal sick call requests in his opposition to the motion for summary 

judgment. The district court further noted that Dr. Hinkle met with Irby one 

day after his November 15, 2017 handwritten request for medical care. The 

district court concluded that “Irby’s unsupported allegations of ignored 

requests for treatment are insufficient to raise a genuine issue of material fact 

over whether a constitutional violation occurred.” The district court 

therefore concluded that Dr. Hinkle was entitled to qualified immunity on 

this claim, granted Dr. Hinkle’s motion for summary judgment, and 

dismissed Irby’s § 1983 suit with prejudice. Irby timely filed a notice of 

appeal. 

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II.

We review de novo a grant of summary judgment, applying the same 

standard as the district court. Nickell v. Beau View of Biloxi, LLC, 636 F.3d 

752, 754 (5th Cir. 2011). Summary judgment is appropriate if the record 

discloses “that there is no genuine dispute as to any material fact and the 

movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); 

see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). We view evidence and 

draw all inferences in a light most favorable to the nonmovant; however, 

“[u]nsubstantiated assertions, improbable inferences, and unsupported 

speculation are not sufficient to defeat a motion for summary judgment.” 

Brown v. City of Hous., 337 F.3d 539, 541 (5th Cir. 2003). The pleadings and 

other filings of pro se litigants are construed liberally. Coleman v. United 

States, 912 F.3d 824, 828 (5th Cir. 2019). 

III.

“To establish a claim under § 1983, a plaintiff must (1) allege a 

violation of a right secured by the Constitution or laws of the United States 

and (2) demonstrate that the alleged deprivation was committed by a person 

acting under color of state law.” Pratt v. Harris Cnty., Tex., 822 F.3d 174, 

180 (5th Cir. 2016) (internal quotation marks and citation omitted). Qualified

immunity shields government officials from civil liability if “their conduct 

does not violate clearly established statutory or constitutional rights of which 

a reasonable person would have known.” Pearson v. Callahan, 555 U.S. 223, 

231 (2009)(internal quotation marks and citation omitted). Once the defense 

is properly raised, the burden shifts to the plaintiff to rebut it. Vincent v. City 

of Sulphur, 805 F.3d 543, 547 (5th Cir. 2015). To defeat qualified immunity

at the summary judgment stage, a plaintiff must establish a genuine fact issue 

as to whether an official’s conduct violated a constitutional right of the 

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plaintiff that was clearly established at the time of the violation. Brown v. 

Callahan, 623 F.3d 249, 253 (5th Cir. 2010). 

It is clearly established that deliberate indifference to the serious 

medical needs of prisoners constitutes a violation of the Eighth Amendment 

remediable under § 1983. Estelle v. Gamble, 429 U.S. 97, 104–05 (1976); 

Gobert v. Caldwell, 463 F.3d 339, 345 (5th Cir. 2006). Prison officials violate 

the Eighth Amendment by demonstrating deliberate indifference to a 

prisoner’s serious medical needs, constituting an unnecessary and wanton 

infliction of pain. Estelle, 429 U.S. at 104–06. “Deliberate indifference is an 

extremely high standard to meet.” Gobert, 463 F.3d at 346 (internal 

quotation marks and citation omitted). A prison official shows deliberate 

indifference if “the official knows of and disregards an excessive risk to 

inmate health or safety; the official must both be aware of facts from which 

the inference could be drawn that a substantial risk of serious harm exists, 

and he must also draw the inference.” Farmer v. Brennan, 511 U.S. 825, 837 

(1994). 

Thus, “[a]n official is not liable unless he ‘knows of and disregards an 

excessive risk’ to a plaintiff’s safety.” Kelson v. Clark, 1 F.4th 411, 417 (5th 

Cir. 2021) (quoting Garza v. City of Donna, 922 F.3d 626, 635 (5th Cir.

2019)). This requires a plaintiff to show 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) (internal quotation marks and citation omitted). 

“A serious medical need is one for which treatment has been 

recommended or for which the need is so apparent that even laymen would 

recognize that care is required.” Gobert, 463 F.3d at 345 n.12. “Delay in 

medical care can only constitute an Eighth Amendment violation if there has 

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been deliberate indifference that results in substantial harm.” Westfall v. 

Luna, 903 F.3d 534, 551 (5th Cir. 2018) (internal quotation marks, citation, 

and emphasis omitted). Unsuccessful medical treatment, acts of negligence, 

neglect, or medical malpractice are insufficient to give rise to a § 1983 cause 

of action. Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991). “Medical 

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

inmate’s allegations of deliberate indifference.” Banuelos v. McFarland, 41 

F.3d 232, 235 (5th Cir. 1995). 

A. 

Irby argues that the district court erred in granting Dr. Hinkle’s 

motion for summary judgment because a dispute of material fact existed as 

to Irby’s claim of deliberate indifference to his medical care. He asserts that 

Dr. Hinkle knew of the substantial risk of harm and ignored that risk and that 

Dr. Hinkle’s initial treatment of Irby’s facial injury was inadequate and did 

not address that risk. Furthermore, Irby contends that the record evidence 

supports his argument that Dr. Hinkle delayed medical care of the injury and 

that this delay resulted in continuing pain and facial deformity. 

Irby has not demonstrated that a dispute of material fact existed 

regarding Dr. Hinkle’s initial treatment. Irby urges that Dr. Hinkle knew of 

the seriousness of his facial injuries due to his bouts of unconsciousness and 

provided insufficient treatment by merely prescribing ibuprofen and warning 

him to be careful, but the medical records do not support that assertion. 

Nurse Walker’s notes do not reflect that Irby experienced periods of 

unconsciousness but rather state that he was alert and able to walk and talk. 

Similarly, the notes do not reflect that Nurse Walker recommended to Dr. 

Hinkle that Irby be transported to the emergency room. Irby’s challenges to 

Dr. Hinkle’s initial prescription of ibuprofen and failure to send Irby to the 

emergency room amount to disagreements with his treatment plan, which are 

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not cognizable § 1983 claims. See Varnado, 920 F.2d at 321. Moreover, even 

if the prescription and failure to send Irby to the emergency room were 

erroneous medical decisions, Dr. Hinkle’s acts of negligence or medical 

malpractice are also insufficient to give rise to claims under § 1983. See id.

Irby contends that “[n]o doctor, after being apprised that one fell from the 

top bunk, resulting into noticeable injuries that entails bleeding from the 

nose, and the swelling of the left eye and left side of face, would recommend 

‘Ibuprophen’ only, instead of, as a cautionary measure, medical treatment.” 

But “deliberate indifference cannot be inferred merely from a negligent or 

even a grossly negligent response to a substantial risk of serious harm.” 

Thompson v. Upshur Cnty., 245 F.3d 447, 459 (5th Cir. 2001). 

Similarly, Irby has not demonstrated that a dispute of material fact 

existed regarding Dr. Hinkle’s subsequent treatment. Irby states that he filed 

numerous formal requests for medical care that were ignored, but he did not 

include those forms in his opposition to Dr. Hinkle’s motion for summary 

judgment. He further states that his family made numerous calls to the 

medical ombudsman on his behalf, but no affidavits indicating as much 

appear in the record. After Irby submitted an informal handwritten request 

for additional medical care, Dr. Hinkle saw him the next day. Hinkle ordered 

x-rays that revealed facial fractures, and the medical staff scheduled a followup appointment for Irby. Irby places great emphasis on the ENT’s 

conclusion that surgical repair of the fractures was likely impossible due to 

the passage of time as evidence that Dr. Hinkle’s delay in care resulted in 

serious physical injury. However, there is no evidence that Dr. Hinkle 

ignored requests for medical care or interfered with the scheduling of 

subsequent appointments. Irby indeed requested medical care in the 

November 7, 2017 Step 1 grievance form, but he complained that prison 

guards, rather than Dr. Hinkle, ignored previous requests for additional care. 

Irby has not demonstrated a cognizable delay-of-treatment claim because 

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there is no factual dispute regarding any deliberate indifference by Dr. Hinkle 

that resulted in substantial harm to Irby. See Westfall, 903 F.3d at 551. While 

Dr. Hinkle’s course of action appears to have left much to be desired, it 

simply does not reach the level of deliberate indifference.

Irby relies on a Ninth Circuit case, Jett v. Penner, for the proposition 

that this court should reverse and remand as an issue of material fact exists 

as to whether Dr. Hinkle was deliberately indifferent to a serious medical 

need. 439 F.3d 1091 (9th Cir. 2006). At the outset, the court notes that 

despite Irby’s claim to the contrary, precedent from the Ninth Circuit is not 

binding on this court. Salazar v. Dretke, 419 F.3d 384, 404 (5th Cir. 2005). 

Moreover, the facts of Jett are distinguishable from the instant matter. In 

Jett, the plaintiff fell from the top bunk in his prison cell and fractured his 

thumb. Jett, 439 F.3d at 1094. After being taken to the emergency room, he 

was advised in written instructions to see an orthopedic doctor within a week 

for a recheck. Id. After more than nineteen months, including numerous 

requests for follow-up attention, the plaintiff was finally able to see an 

orthopedic specialist who determined the thumb had healed incorrectly. Id. 

at 1095. In reversing the district court’s grant of summary judgment to the 

prison physician, the Ninth Circuit noted that there was ample evidence in 

the plaintiff’s medical file to support a finding that the physician was aware 

of the risk to the plaintiff. Id. at 1097 (“[T]here is evidence the aftercare 

instructions were in [plaintiff’s] medical file, he sent medical slips, he filed a 

medical grievance . . . and he sent a letter via institutional mail to [the prison 

physician] describing his need to see an orthopedic doctor to set and cast his 

fractured right thumb.”). The Ninth Circuit concluded that the plaintiff 

presented sufficient evidence to establish that the defendants were 

deliberately indifferent to his need to have his fractured thumb set and cast. 

Id. at 1096. 

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Here, Irby states that he filed numerous formal requests for medical 

care that were ignored like the plaintiff in Jett, but he did not include those 

forms in his opposition to Dr. Hinkle’s motion for summary judgment. To 

the contrary, the records show that after Irby submitted an informal 

handwritten request for additional medical care, he met with Dr. Hinkle the 

next day and x-rays were ordered. Moreover, unlike the medical file of the 

plaintiff in Jett that included follow-up care instructions that put the prison 

physician on notice, nothing in Irby’s medical file indicated that he was at a 

substantial risk of harm. To the contrary, the medical file indicates that Irby

was alert, could walk and talk, and had normal vital signs. 

Given the absence of a factual dispute regarding a constitutional 

violation, the district court did not err in concluding that Dr. Hinkle was 

entitled to qualified immunity and in granting Dr. Hinkle’s motion for 

summary judgment on Irby’s deliberate indifference claims. 

B.

Irby also argues that the district court erred in not allowing him to 

present witnesses in support of his opposition to Dr. Hinkle’s motion for 

summary judgment. Specifically, he wished to call Nurse Walker and two 

officers who witnessed his fall. To the extent Irby challenges the failure of 

the district court to hold a hearing on Dr. Hinkle’s motion, Irby had no right 

to a hearing. See Johnson v. United States, 460 F.3d 616, 619 n.2 (5th Cir. 

2006); Daniels v. Morris, 746 F.2d 271, 274–75 (5th Cir. 1984). This court 

reviews for abuse of discretion the district court’s decision not to hold a 

hearing on a motion for summary judgment. Garza-Trevino v. New England 

Fin., 320 F. App’x 203, 206 (5th Cir. 2009); see also Pavone v. Miss. Riverboat 

Amusement Corp., 52 F.3d 560, 568 (5th Cir. 1995) (denial of motion to 

continue summary judgment hearing); Eason v. Thaler, 14 F.3d 8, 9 (5th Cir. 

1994) (dismissal of a prisoner’s complaint without holding a hearing). 

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The district court did not abuse its discretion. Irby contends that his 

requested witnesses would have provided eyewitness accounts of his fall from 

the bunk and the events after the incident, but it is not clear whether the 

district court would have permitted live testimony at the summary judgment 

hearing and the refusal of such would not be an abuse of discretion. More 

importantly, Irby was not denied the opportunity to come forward with 

testimonial evidence because he could have obtained affidavits from potential 

witnesses and submitted them with his motion.

Accordingly, the judgment of the district court is AFFIRMED. 

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