* Pursua nt to 5 T H C IR

. 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this opinion should not be published and is not precedent except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 5 TH C IR

. R. 47.5.4. United States Court of Appeals

Fifth Circuit



## FILED

July 26, 2004

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 03-40274

SALLY HART, Independent Executrix of the Estate of Joseph L.

Hall,

Plaintiff-Appellee,

versus

TEXAS DEPARTMENT OF CRIMINAL JUSTICE; ET AL,

Defendants,

GLENDA M. ADAMS, M.D.,

Defendant-Appellant.

-------------------- Appeal from the United States District Court

for the Southern District of Texas

(G-02-CV-211)

--------------------

Before DAVIS, WIENER, and STEWART, Circuit Judges.

PER CURIAM: *

Defendant-Appellant Glenda M. Adams, M

. D. (“Dr. Adams”)

appeals the district court’s denial of summary judgment. Texas

prison inmate Joseph Hall originally brought suit in the district

court alleging that Dr. Adams, in her capacity as Eastern Regional

Medical Director, University of Texas Medical Branch Correctional

Managed Care (“UTMB”), violated his Eighth Amendment right to

adequate medical care by demonstrating deliberate indifference to1 Hall died i n April 2003 and the executrix of his estate,

Sally Hart, has continued his lawsuit. Because the central

allegations made in the district court revolve around Hall and the

time he spent as an inmate in the Texas Department of Criminal

Justice, however, this opinion refers to Hall as the plaintiff.

2 the serious medical needs of inmates, including himsel f. 1 In the

district court, Dr. Adams filed a motion for summary judgment based

on qualified immunity, which motion the court denied. We dismiss

this appeal, based on our conclusions that (1) Hall has alleged a

violation of a clearly established cons titutional right, and (2)

any decision on whether Dr. Adams’s conduct was objectively

unreasonable turns on a genuine dispute about issues of mat erial

fact, which we have no jurisdiction t o consider at this stage of

the action.

I. Facts and Proceedings

The three individuals most intimately involved with this case

were all associated with the Texas Department of Criminal Justice

(“TDCJ”) at the time that the incidents giving rise to the lawsuit

took place. Hall was an inmate at the Wynne Unit of the TDCJ; Dr.

Curtis Kovacs (“Dr. Kovacs”) was the acting Medical Director at the

Wynne Unit; and Dr. Adams was UTMB’s Ea stern Regional Medical

Director and, in that capacity, was Dr. Kovacs’s superior.

In October 1997, Dr. Kovacs noticed a suspicious nodule in one

of Hall’s lungs when reviewing Hall’s annual chest x-ray at the

Wynne Unit. Dr. Kovacs recommended that Hall be referred to a

facility at which he could receive a CAT scan. This would require3

that Hall be transferred to the Estelle Unit in Galveston

(“Estelle”), where appropriate facilities were located. Dr. Adams

approved Dr. Kovacs’s CAT scan referral for Hall in late October.

Corrections o fficers attempted to effect Hall’s transfer in

December 1997, but when they arrived at Hall’s cell at

approximately 10:30 pm, they could provide him no information

regarding why he was being “chained out” to Estelle. Hall

testified that, because going to Estell e would require a full

transfer, with a change in living conditions and potential loss of

privileges, he went to the infirmary to inquire as to the reason

for the transfer, but received no information there either. As

neither the o fficers nor the infirmary personnel could tell Hall

why he was being transferred, he declined unspecified medical

treatment rather than accept the transfer to Estelle. No follow-up

was ever pursued, by either Dr. Kovacs or Dr. Adams, so Hall never

received the CAT scan.

During his tenure as acting Medical Director of the Wynne Unit

(January 1997 to May 1998), Dr. Kovacs consistently complained to

Dr. Adams about the prisoner referral and transfer system. In Dr.

Kovacs’s opinion, as expressed in several personal conversations he

had with Dr. Adams and in month ly reports that he prepared and

furnished to her, the system was failing: Many inmates failed to

receive needed medical care as a direct result of problems and

deficiencies in the referra l and transfer system. Dr. Kovacs

indicated in several reports that transfer refusals by inmates4

(generally because of the Estelle Unit’s reputation for poor living

conditions) presented a continuing health problem. Dr. Kovacs also

proposed changes that he thought might correct the problems arising

out of refused or otherwise failed transfers, but his suggestions

were rejected.

Dr. Kovacs’s actions

—— and Dr. Adams’s response s (and nonresponses) to them —— are at the heart of the instant suit. Hall

alleges that Dr. Kovacs made Dr. Adams aware of serious problems

with the referral system that D r. Kovacs considered were

endange r ing patients’ lives, and that Dr. Adams’s intentional

refusal to address these problems constituted deliberate

indifference to the health and safety of inmates. Hall contends

that Dr. Adams’s actions towards inmates in general deprived him of

his constitutional right to adequate medical care under the Eighth

Amendment, regardless of the fact that she did not personally block

his access to medical care.

After his release from prison in August 2001, Hall was

diagnosed with lung cancer and was told that he had approximately

one year to live. The cancer spread to his skeletal system,

requiring the amputation of one leg. Hall died in April 2003.

II. Analysis

A. Jurisdiction2 28 U.S.C. § 1291.

3 472 U.S. 511 (1985).

4 See Mitchell , 472 U.S. at 526-27.

5 Johnson v. Jones , 515 U.S. 304, 314 (1995).

6 Mitchell , 472 U.S. at 530.

5 The courts of appeals have jurisdiction to hear appeals from

“final decisions” of the district courts. 2 Although this is an

interlocutory appeal, we have ju risdiction to review denials of

summary judgments seeking qualified immunity under the “collateral

order” doctrine, as explained by Mitchell v. Forsyth

. 3 Because

qualified immunity implicates the right not to stand trial

, denial

of a qualified immunity claim is final in that the right to avoid

trial altogether cannot be vindicated by later appeal. 4 Our

jurisdiction in such cases is not unlimited, however. As the

q ualified immunity analysis is “significantly different from th e

ques tions underlying [a] claim on the merits,” and q uestions of

“evidence sufficien cy” are not appealable, 5 we may only review a

denial of qualified immunit y “to the extent that it turns on an

issue of law.” 6

Our case law has adhered to these principles. As we explained

in Cantu v. Rocha , interlocutory appeals are based on an issue of

law

—— and therefore appealable —— “when they concern o nly

application of established legal principles, such as whether an

official’s conduct was objectively reasonable in light of clearly7 77 F.3d 795, 802 (5th Cir. 1996) (emphasis added).

8 See

, e.g.

, Hart v. O’Brien

, 127 F.3d 424, 436 (5th Cir.

1997)(abrogated by the Supreme Court on other grounds, see Spivey

v. Robertson , 197 F.3d 772 (5th Cir. 1999)).

9 246 F.3d 481, 490 (5th Cir. 2001) (emphasis in original).

10 See, e.g.

, Allen v. Rapides Parish Sch. Bd.

, 204 F.3d 619,

621 (5th Cir. 2000); McDaniel v. Anheuser-B usch, Inc. , 987 F.2d

298, 301 (5th Cir. 1993).

6 established law, to a given (for purposes of appeal) set of

f acts.” 7 Although we will consider only u ndisputed facts when

deciding such legal issues, a defendant may argue that sufficient

undisputed facts exist to establish immunity. 8

This is essentially what Dr. Adams argues in the instant case,

despite the district court’s asserted rationale for denying

qualified immunity, made clear in its response to Dr. A dams’s

Motion to Reconsider: “This Court ... remains of the opinion, ...

that

... there are ‘genuine’ issues of fact in dispute and that

those factual issu es are ‘material’ ....” As we summarized this

problem in Bazan v. Hidalgo County , even questions of law such as

whether a defendant’s actions are objectively reasonable “ cannot be

decided if there are ge nuine issues of material fact

. ” 9 We

therefore have jurisdiction over the instant case to the extent,

but only to the extent, that no underlying factual issues exist.

B. Standard of Review

We review a district court’s decision on summary judgment de

novo , applying the same standard as did the district court. 1011 F elton v. Polles , 315 F.3d 470, 473 (5th Cir. 2002)

(emphasis in original).

12 Id

. at 478 ( quoting Pierce v. Smith

, 117 F.3d 866, 871 (5th

Cir. 1997).

7 C. Qualified Immunity

Our review of denials of qualified immunity comprises a twopronged inquiry: “(1) under existing law

, does the plaintiff allege

a violation of an actual, c learly established constitutional or

federal statutory right; and (2) if so

, was the defendant’s conduct

objectively unrea sonable in the light of clearly established law

at the time of that conduct .” 11 D espite the district c ourt’s

a ssertion that its denial of qualified immunity was based on

genuine issues of material fact, we ha ve jurisdiction to review

questions of law, including “(1) ‘the issue of whether and when a

right is clearly established’; and (2) ‘to the extent that the

relevant discrete, historic facts are undisputed,

... the question

of the objective unreasona bleness of the defendant’s conduct.’” 1 2

Dr. Adams asserts that the district court erred in its decisions on

both these questions.

1. Was the right clearly established?

Dr. Adams insists that ev en though the general right to

adequate medical care was clearly established at the time that the

events giving rise to this lawsuit occurred, the “exact contours”

of that right were not. Dr. Adams contends that because the

contours of the right were ill-defined, a public official in her13 245 F.3d 447, 460 (5th Cir. 2001).

14 134 F.3d 325, 330 (5th Cir. 1998) (emphasis in original)

( quoting Pierce v. Smith , 117 F.3d 866, 882 (5th Cir. 1997)).

15 Sorenson

, 134 F.3d at 330 n.11 (5th Cir. 1998) (emphasis in

original) ( quoting Pierce v. Smith

, 117 F.3d 866, 882 (5th Cir.

1997)).

8 position could not have known that the alleged actions violated

that right. For support, Dr. Adams cites T hompson v. Upshur

County , in which we explained that “[w]hen assessing the scope of

clearly established law ... it is necessary to articulate the

asserted constitutional right more specifically.” 13 Dr. Adams also

relies on Sorenson v. Ferrie

, which contains similar language:

“[F]or qualified immunity to be surrendered, pre-existing law must

dictate, that is, truly compel

... the conclusion

... that what

defendant is do ing violates federal law i n the circumstances .” 14

Given this precedent and the unique fact pattern of the instant

case, Dr. Adams argues that finding a clearly defined

const itutional right here would be to dictate “that a prison

official has an affirmative duty to identify an inmate who refuses

a referral to a medical specialty clinic and to assure that his

appointment is rescheduled.”

We disagree with Dr. Adams’s assessment and her unduly narrow

definition of t h e right at issue here. As we explained in

Sorenson

, “it is not necessary ... that the plaintiff point to a

previous case that differs only trivially fromhis case,” but

rather that the cited precedent be “ materially similar.” 15 Contrary16 See Roe v. Texas Dep’t of Protective and Regulatory Servs.

,

299 F.3d 395, 408-09 (5th Cir. 2002).

17 Actually, Upshur County ’s “specificity” language appears to

be inapplicable to the “clearly established” prong. U pshur County

discussed specificity only in the context of the second prong

——

whether the defendants’ conduct in that case was ob jectively

unreasonable

—— which, as we discuss in Part II.C.2 infra

, we

cannot reach in the instant case for lack of jurisdiction. As to

the question whether the plaintiff in Upshur County had alleged a

violation of a clearly established right, that panel explained that

an allegation that defendants “were deliberately indifferent to the

serious health needs of [plaintiff] and ... promulgated or failed

to promulgate policies that manifest their deliberate indifference

toward the serious medical needs of their detainees.

... satisfied

[plaintiffs’] burden to allege, at a high level of generality, a

constitutional violation.” 245 F.3d 447, 459 (5th Cir. 2001).

This language supports our conclusion that Hal l has alleged a

violation of a clearly established right.

18 536 U.S. 730, 739 (2002) (emphasis added) (internal citation

omitted)( quoting Anderson v. Creighton

, 483 U.S. 635, 640 (1987)).

9 t o Dr. Adams’s suggestion, the Supreme Court’s most recent

articulation of what it means for a right to be “clearly

established”

—— which articulation we subsequently adopted 16

——

confirms that the exact fact pattern of the case under review need

not be found in prior case law. 17

In that case

—— Hope v. Pelzer

, a post- Upshur County case

which the dissent here does not address

—— the Supreme Court

explai ned that for a constitutional right to be clearly

established,

its contours “must be sufficiently clear that a

reasonable official would un derstand that what he is

doing violate s that right. T his is not to say that an

official action is protected by qualified immunity unless

the very action in question has previously been held

unlawful ... but it is to say that in the light of preexisting law the unlawfulness must be apparent.” 1819 Hope

, 536 U.S. at 741 (emphasis added) ( quoting United

States v. Lanier , 520 U.S. 259, 271 (1997).

20 Hope , 536 U.S. at 741.

21 520 U.S. 259 (1997).

22 117 F.3d 866 (5th Cir. 1997).

23 245 F.3d 447 (5th Cir. 2001).

24 Hope , 536 U.S. at 739 (footnote omitted).

10 In Hope the Court further clarified that, in general, prior

precedent must give state officials “reasonable warn ing” that a

particular course of conduct violates a constitutional right, and

cited precedent indicating that “ general statements of the law are

not inherently incapable of giving fair and clear warning.” 19 The

Hope Court specifically noted that “officials can still be on

notice that their conduct violates established law even in novel

factual circumstances.” 20 The Court noted further that, previously,

in United State s v. Lanier

, 21 it had rejected a requirement that

prior case law be “fundamentally similar.”

In fact, the Hope Court’s discussion of “clearly established”

constitutional rights casts serious doubt on the continued

viability of the rigid standard laid down in Pierce v. Smith 22 and

Thompson v. Upshur County

. 23 In Hope , the Supreme Court expressly

disapproved of Eleventh Circuit precedent requiring that “the facts

of previous cases be ‘materially similar’” to the situation before

the reviewing court, explaining that “[t]his rigid gloss on the

qualified immunity standard

... is not consistent with our cases.” 2425 28 F.3d 1146 (11th Cir. 1994).

26 See Hope , 536 U.S. at 739.

27 See

, e. g.

, C olson v. Grohman

, 174 F.3d 498, 506 (5th Cir.

1999).

11 This is significant because Pierce

, the foundation of our own rigid

standard on the “clearly established law” question, itself borrowed

that standard from Lassiter v. A labama A&M University, Board of

Trustees 25

—— a case specifically noted by the Hope Court as being

inconsistent with Supreme Court precedent. 26 Thus, H ope pushes us

toward a more gen eral description of the constitutional right at

issue both by describing a level of specificity lower than that we

have used in the past, a nd by undermining t he case law that

originally established the more rigid standard and thereby eroding

the foundations of our precedent on this point.

It is in this context that we must consider whether the right

at issue in the instant case was “clearly established.” As we must

take the facts in the light most favorable to the non-movant, 27 the

real question is whether a public official in charge of inmate

medical care may ignore system-wide problems —— especially when

they are repeatedly brought to her attention by another similarly

credentialed public official

—— that threaten the health and safety

of inmates, thereby (as Hall has alleged) knowingly, i.e.

conscious l y, pursuing a path of complete inactivity

——

affirmatively deciding to do nothing

—— in the face of these

problems. We must ask rhetorically whether the more general28 Farmer v. Brennan , 511 U.S. 825, 837 (1994).

29 Johnson v. Jones , 515 U.S. 304, 313 (1995).

12 formulations of the Eighth Amendment right to adequate medical care

give “fair and clear warning” that such inaction is impermissible,

despite the “novel factual circumstances” of the instant case. We

think that they do.

In F armer v. Brennan

, the Supreme Court explained that a

prison official who “knows of and disregards an excessive risk to

inmate health or safety” demonstrates deliberate indifference and

can be held liabl e under the Eighth Amendment. 2 8 This general

formulation is the baseline for these types of claims, and was

clearly established by 1997. According to Hall’s summary judgment

evidence and reasonable inferences therefrom, Dr. Adams’s conduct

falls squarely within that framework. Before the district court,

and again in his appellate brief, Hall alleged that (1) Dr. Adams

was repeatedly put on notice, by another physician, that the inmate

transfer referral system was “so inadequate that inmates were being

put in serious danger,” yet (2) she “refused to address” those

problems. Any suggestion that the inmates were not being put in

serious danger raises a question of “‘evidence sufficiency,’ i.e.

,

which facts a party may, or may not, be able to pro ve at trial,”

which is not appealable at this stage of the litigation. 2930 See

, e.g.

, Colston v. Barnhart

, 130 F.3d 96, 98-99 (5th Cir.

1997): “The district court’s determ ination that fact issues were

presented that precluded summary judgment does not necessarily deny

us jurisdiction

... We can determine as a matter of law whether

Barnhart is entitled to qualified immunity after accepting all of

Colston’s factual allegations as true .” (emphasis added) (internal

citation omitted).

31 Tho mpson v. Upshur County , 245 F.3d 447, 459 (5th Cir.

2001).

32 Alton v. Tex. A&M Univ.

, 168 F.3d 196, 199 (5th Cir. 1999).

13 Taking Hall’s allegations as true, as we must at for summary

judgment purposes, 30 there is no appreciable difference between

these alleg ations and the general framework provided by, for

e xample, Farmer v. Brennan

. Therefore, just as in Upshur Coun ty

,

Hall has satisfied his “burden to allege, a t a high level of

generality, a constitutional violation.” 3 1 Were we to define the

right at issue as narrowly as Dr. Adams urges, we would, in effect,

be freezing the law as it exists toda y. No plaintiff could ever

successfully allege a violation of a constitutional right, as long

as the violation was perpetrated in even a slightly new and unusual

way. This appears to be exactly the situation about which the H ope

Court was concerned.

It is true that Hall must produce some evidence to support his

allegations; and evidence that is “so weak or tenuous on an

essential fact that it could not support a judgment” will not

suffice. 32 It is also true that mere disagreement among the parties33 See Anderson v. Libe rty Lobby, Inc. , 477 U.S. 242, 247-48

(1986).

34 In more than one monthly report, Dr. Kovacs complained that

“no one seems to care enough to want to help. Only solution seems

to be even mo re prayer.” In a letter to Dr. Adams, Dr. Kovacs

asserted that “[w]henever I ask for your help it is ignored,” and

he repeated that allegation in a letter to Dr. Rochelle McKinney

(to which Dr. Adams was carbon-copied): “[w]henever I ask ... Dr.

Ada ms ... for help ... there is no response, .... I am not

unwilling to accept more work in the pursuit of adequate

healthcare.”

14 as to the facts will not prevent summary judgment. 33 In the instant

c ase, however, Hall has carried his burden on this point. The

summary judgment evidence produced at trial demonstrates that (1)

Dr. Kovacs produced monthly reports that documented, i nter al ia

,

transfer and referral system problems that negatively affected

patient care, (2) Dr. Kovacs personally discussed these problems

with Dr. Adams on at least one occas ion, and (3) Dr. Kovacs

complained on more than one occasion, to Dr. Adams as well as other

officials, that Dr. Adams was continuing to do nothing about these

systemic problems and that inmate care was being severely

undermined as a result. 34 Indeed doing nothing in the face of

express knowledge of a deleterious situation is quintessential

deliberate indifference.

We note in passing that many of the problems highlighted by

Dr. Kovacs would appear (to a layperson, at least) to be serious

enough to affect patient care significantly. Additionally, in a

letter to Dr. Rochelle McKinney , a copy of which was sent to Dr.

Adams, Dr. Kovacs “admit[ted] to a great deal of frustration trying35 See note 29, supra , and accompanying text.

36 See

, e.g.

, Southard v. Texas Bd. of Crim. Justice

, 114 F.3d

539, 554 (5th Cir. 1997) (discussing why a defendant could

successfully assert qualified immunity, we noted that he “did not

simply ignore the complaints

.... Instead, [he] took some steps

.... Even if those steps were ‘ineffectual,’ they do not

demonstrate deliberate indifference.”).

15 to get adequate and timely care for [his] patients,” which clearly

implies that the care he was able to give at that point was

in adequate. Although this is not the appropriate time to assess

the strength of Hall’s factual allegations, we mention this in the

context o f whether the right to medical care (as that right is

implicated here) was “clearly established”; that is, whether the

risks that Dr. Adams ignored can fairly be said to have been

“ excessive.” In the instant case, Hart has produced summary

judgment eviden ce that adequately alleges an excessive risk. At

least, this is a factual question to be decided at trial. 35

2. Was Dr. Adams’s conduct objectively unreasonable?

Dr. Adams also says that she took “some steps” to combat the

problems highlighted by Dr. Kovacs, and that this f act alone

precludes a finding of deliberate indifference. 36 Furthermore,

contends Dr. Adams, her assertions on remedial action are

“undisputed” by Hall. This second statement is flatly inaccurate.

Hall has always insisted that Dr. Adams did nothing to address the

problems detailed by Dr. Kovacs; and, as we have indicated, there

is summary judgment evidence that supports his cont ention. This

dispute is genuine and the fact disputed is certainly material.37 Mitchell v. Forsyth , 472 U.S. 511, 530 (1985).

16 Furthermore, many of the actions that Dr. Adams contends she took

could not have been in response to Dr. Kovacs’s complaints, which

are the foundation of the instan t suit. For example, Dr. Adams

argues that authoring a 1996 report and re quiring the monthly

status reports involved in this case are indicators of her response

to the problems identified by Dr. Kovacs. But, the 1996 report was

written more than a year before the events giving rise to this

lawsuit and six months before Dr. Kovacs became acting Medical

Director. Disregarding for a moment that, at oral argument, Hall

contested Dr. Adams’s assertion that she “required” them, Dr.

Kovacs’s monthly reports were the very means by which he informed

Dr. Adams of the problems at issue. Thus, neither action could

have been in response to Dr. Kovacs’s complaints and could not

affect the substance of Hall’s allegations.

As the parties have produced conflicting summary judgment

evidence on what actions Dr. Adams did or did not take in response

to the problems highlighted by Dr. Kovacs, a genuine question of

fact exists here. We have no jurisdiction to consider such genuine

disputes at this stage of the proceedings. As noted, we may only

review denials of summary judgment “to the extent that [a denial]

turns on an issue of law.” 37 As regards this facet of Dr. Adams’s

appeal

—— that is, whether her conduct was objectively unreasonable

—— the district court’s decision does not “concern only application38 Cantu v. Rocha

, 77 F.3d 795, 802 (5th Cir. 1996) (emphasis

added).

39 Bazan v. Hidalgo County

, 246 F.3d 481, 490 (5th Cir. 2001).

Compare Hart v. O’Brien , 127 F.3d 424, 436 (5th Cir.

1997)(explaining that because “[t]he parties did not disagree over

whether the officials had engaged in [the] conduct,” the court

could consider whether that conduct was unreasonable as a matter of

law.)

17 of established legal principles

... to a given (for purposes of

appeal) set of facts.” 38 Instead, the parties disagree about what,

exactly, the defendant did. Clearly, this is an underlying

“genu ine issue[] of material fact,” which precludes our

consideration of this point. 39

III. Conclusion

Because we conclude that (1) Hall has alleged a violation of

a clearly es tablished constitutional right, and (2) the

determination whether Dr. Adams’s actions were objectively

unreasonable turns on genuinely disputed question s of material

fact, thereby depriving us of jurisdiction to consider that part of

the appeal, this appeal is

DISMISSED.W. Eugene Davis, Circuit Judge, dissenting.

Because I believe Dr. Adams is entitled to qualified immunity

as a matter of law, I dissent.

I.

This case boils down to a disagreement between Dr. Kovacs, the

acting Medical Director of the Wynne Unit where Hall was

incarcerated (and whose testimony plaintiff relies on) and the

defendant, Dr. Adams, the Regional Med ical Director, who was in

charge of medical care for inmates incarcerated in prisons in a

multi-county region including the Wynne unit. When an x-ray of

Hall’s lungs showed an abnormality that needed further

investigation, Kovacs got permission from Dr. Adams to refer Hall

to a medical specialist at the medical unit located at the Estelle

Unit in Galveston. Arrangements were made to transfer Hall to the

Estelle Unit for this medical examination and Hall refused the

referral and signed a form acknowledging this refusal. When a

tumor developed several years later and Hall di ed, his survivor

complains that the defendan t is responsible for administering a

system which permitted Hall to fall through the cracks so that

further consideration was not given to a follow-up referral.

It is true that Dr. Kov acs complained long and loud to Dr.

Adams about many features of prison medical care offered to the

inmates. The only complaint that is relevant to this case is his

argument that a better tracking system (prefera bly computerized)19

should have been put in place to track appointments and make sure

that an inmate who missed an appointment would not get lost in the

system and assure that the necessary follow-up action could be

taken.

Dr. Adams did not ignore Dr. Kovacs’s compl aint and

recommendation for an improve d tracking system. The summary

judgment record reflects that she responded to his complaint by

making it clear that she believed the most efficient and effective

system was for the physician at the local prison unit to maintain

control over tracking misse d appointments. In light of the

correspondence between Drs. Kovacs and Adams in the record, Hall’s

statement in his affidavit that Dr. Adams ignored Dr. Kovacs’s

complaint about an improved computerized tracking system apparently

meant that Dr. Adams did not comply with Dr. Kovacs’s

recommendation.

The plaintiff complains about a number of other deficiencies

in the prison m edical system such as the deplorable living

condition s in the medical unit in Galveston where Hall was to be

transferred for his referral examinatio n. Apparently the

substandard living conditions in the Estelle Unit, as compared to

the Wynne Unit, are the reason Hall declined the transfer and the

referral examination. Dr. Adams, as Regional Medical Director, had

no control over the prison conditions at the Estelle Unit in

Galveston and the majority does not find otherwise.

II.20 A.

First, Hall’s summary judgment evidence fails to establish any

nexus between the allegedly flawed policy and his injury. The

tracking system that was in place worked. Dr. Kovacs initiated the

process when he made the clinical decision to refer Hall for the CT

scan. Dr. Adams approved the CAT scan referral. When Hall refused

t he referral, TDCJ policy provided for physician review t o

determine whether further action was indicated. Under that policy,

it was up to the local unit physician to make a clinical decision

whether or not to reschedule an appointment. Lloyd Ashberger, a

physician’s assistant on Dr. Kovacs’s staff was given Hall’s chart

on December 5, 1997, the day after Hall r efused the referral on

December 4. Mr. Ashberger noted in Hall’s chart that no

appointment would be rescheduled until approved by the unit

physician consistent with TDCJ poli cy. He recommended the

alternative of repeating the x-ray on Hall’s next clinic visit in

lieu of the CT scan. A repeat x-ray was made approximately one

year later and no change was observed in the nodule and no referral

was recommended by the radiologist. So Hall’s case did not fall

though the cracks. His refusal to accept the referral was called

to the attention of the Wynne Unit medical staff the very next day

and the staff exercised their judgment about the appropriate action

to take.

Also, the record reveals that it was not uncommon for Hall to

ref use a referral to Galveston for medical evaluation. From21

October 1993 to August 2001, Hall was referred to Galveston seven

times for various complaints and he refused to go on the last five

referrals. On the June 7, 2001 referral, Hall refused to go for a

pulmonary evaluation even after he was counseled and urged to go

following a determination that he had a five centimeter density in

his right lung and was coughing up blood. Accordingly, a reasonable

fact finder could not infer that Hall would have kept an

appointment in 1997 or 1998 when he had no symptoms and when x-ray

findings were much less significant. Thus, the alleged flawed

policy did not cause Hall to go untreated or cause any right he

might have to be violated. T hompki ns v. Belt , 828 F.2d 298, 304

(5th Cir. 1987).

B.

I also disagree with my colleagues that the summary judgment

evidence reveals conduct by Dr. Adams that was unreasonable in

light of clearly established law.

Identifying the specific conduct of the defendant that the

plaintiff complains of is critical because it is that conduct that

must be examined to determi ne whether the defendant’s acts were

objecti vely reasonable in light of clearly established law. As

Judge Garwood stated in Thompson v. Upsur County

, 245 F.3d 447 (5 th

Cir. 2001), “when a defendant moves for summary judgment based on

qualified immunity, it is the plaintiff’s burden to demonstrate

that all reasonable officials similarly situated would have then

known that the alleged acts of the defendants violated the United40 This precisely tracks the analysis of the court in Thompson

at 460.

22 States Constitution.” ( Id

. at 460, emphasis added). As stated

above, the conduct of the defendant the plaintiff complains of is

Dr. Adams’s failure to comply with Dr. Kovacs’s request to

implement an improved tracking system instead of relegating this

function to the local unit medical director. Thus, unless all

reasonable jail officials would recognize the unconstitutionality

of implementing a system for tracki ng medical appointments for

inmates under the supervision of the me dical director in each

prison unit rather than putting in place a computerized system then

Dr. Adams actions were objectively reasonable. Given the absence

of even a single case constitutionally requiring the implementation

of any particular type of tracking system, it cannot be said that

all reasonable jail officials would recognize the

unconstitutionality of Dr. Adams’ actions. 40

C.

Finally, Dr. Adams’s decision to track transfers on a local,

rather than systemwide basis, does not amount to deliberate

indifference toward the med ical needs of inmates subject to the

system. Dr. Adams’ communication with Dr. Kovacs clearly reflects

that she considered his proposed solution and simply disagreed with

it. In order to demonstrate deliberate indifference, “the official

must both be aware of facts from which the inference could be drawn23

that a substantial risk of serious harm exists, and he must draw

the inference.” D omino v. Texas Departme nt of Criminal Justice

,

239 F.3d 752, 755 (5th Cir. 2001)(quoting Farmer v. Brennan

, 511

U.S. 825, 837 (1994).

Leaving the decision to the local medical director to decide

whether a repeat appointment should be made is p articularly

sensible when the inmate refuses the initial appointment. Under

these circumstances, a reasonable fac t finder could not conclude

that Adams was unreasonable in leaving to the local medical unit

the task of discus sing the prisoner’s medical condition and the

proposed diagnostic tests that might be needed. This is the

procedure required under written policies promulgated by the TDCJ,

which Dr. Adams was required to follow. Plaintiff does not suggest

what other rule Dr. Ad ams should promulgate or propose be

promulgated that would apply universally to track appointments for

referrals inmates refuse. Dr. Adams was not deliberately

indifferent because she did not agree with Dr. Kovacs that a

different system for tracking referrals would b e better or more

effective than the system that was in place which required the

local unit physician to decide whether another appointment should

be made. See also S outhard v. Texas Board of Criminal Justice

, 114

F.3d 539.

For the above reasons, I respectfully dissent.24