IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-10412

Summary Calendar

JUSTIN WAYNE SMITH,

Plaintiff-Appellee

v.

CINDY MARTINEZ, Registered Nurse, Kaufman County Sheriff’s Office,

Defendant-Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:10-CV-703

Before REAVLEY, JOLLY, and DAVIS, Circuit Judges.

PER CURIAM:*

Justin Wayne Smith, Texas prisoner #1518707, filed a 42 U.S.C. § 1983

lawsuit against four defendants associated with the Kaufman County Jail for

violations of his constitutional rights while he was a pretrial detainee in 2008.

Smith alleged that the defendants, including head nurse Cindy Martinez, were

deliberately indifferent to his serious medical needs arising from ulcerative

colitis. All four defendants moved for summary judgment, asserting qualified

immunity among other things. The magistrate judge recommended that

United States Court of Appeals

Fifth Circuit

F I L E D

January 31, 2013

Lyle W. Cayce

Clerk

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.

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No. 12-10412

summary judgment be granted in part and denied in part. The magistrate judge

found that there was a genuine issue of material fact that Martinez had been

deliberately indifferent to Smith’s medical needs by failing to monitor his

deteriorating condition from January 2, 2008, to February 14, 2008. Following

objections, the district court adopted the magistrate judge’s findings and

conclusions. The district court specifically found that the record as a whole

presented a genuine dispute of material fact “that Martinez acted with

deliberate indifference to Smith’s serious medical needs.”

The denial of a motion for summary judgment based upon qualified

immunity is a collateral order capable of immediate review. Mitchell v. Forsyth,

472 U.S. 511, 530 (1985). However, our jurisdiction to review the denial is

“significantly limited,” extending to questions of law only. Kinney v. Weaver, 367

F.3d 337, 346 (5th Cir. 2004) (en banc). “Whenever the district court denies an

official’s motion for summary judgment predicated upon qualified immunity, the

district court can be thought of as making two distinct determinations, even if

only implicitly.” Kinney, 367 F.3d at 346. “First, the district court decides that

a certain course of conduct would, as a matter of law, be objectively unreasonable

in light of clearly established law. Second, the court decides that a genuine issue

of fact exists regarding whether the defendant(s) did, in fact, engage in such

conduct.” Id. “According to the Supreme Court, as well as our own precedents,

we lack jurisdiction to review conclusions of the second type on interlocutory

appeal.” Id. “We do, however, have jurisdiction to review the first type of

determination, the purely legal question whether a given course of conduct

would be objectively unreasonable in light of clearly established law.” Id. at 347.

We have recently applied this analysis to the denial of summary judgment based

on qualified immunity in a pretrial detainee’s § 1983 action for deliberate

indifference to a substantial risk of medical harm. See Brown v. Strain, 663 F.3d

245, 248-50 (5th Cir. 2012). 

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In Brown, we held that a defendant would not be entitled to qualified

immunity if the plaintiff “had alleged facts showing that [the defendant] was

deliberately indifferent to the substantial risk of medical harm” faced by the

defendant. Id. at 249. We then cited Tamez v. Manthey, 589 F.3d 764, 770 (5th

Cir. 2009), which held that to show deliberate indifference, the plaintiff must

show that the defendant had subjective knowledge of facts from which an

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

actually drew the inference, and that the defendant’s response indicated that he

subjectively intended that harm to occur. Brown, 663 F.3d at 249. This is the

standard applied by the district court. Martinez has not presented anything on

appeal that challenges the district court’s purely legal determination of the

evidence required to show that Martinez’s course of conduct in this matter

“would be objectively unreasonable in light of clearly established law.” Kinney,

367 F.3d at 347. 

Applying the facts alleged by Smith to the deliberate indifference

standard, the district court found that “a reasonable jury could find that Nurse

Martinez actually drew the inference that a substantial risk of serious harm

existed to [Smith] given that [Smith] testified that she repeatedly refused to

allow him to see Dr. Fortner during this time[ ]frame, despite him asking

repeatedly and graphically detailing his symptoms to her.” In overruling

objections to these findings, the district court found that additional evidence

cited by Martinez did not negate the sufficiency of these facts to preclude

summary judgment. Rather, the district court found that the resolution of the

“case turns on assessing the credibility of witnesses and weighing the evidence,

neither of which the court can do at the summary judgment stage.” 

On appeal, Martinez does not directly challenge the district court’s

conclusion that there are genuine issues of material fact but argues that other

facts outweigh Smith’s testimony. Martinez argues that Smith did not allege

evidence showing that she had knowledge of facts from which to infer that Smith

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was at substantial risk of serious medical harm because his symptoms were

normal for his condition and he was receiving the standard medical treatment

for them. She argues that Smith failed to allege facts showing that he faced a

substantial risk of medical harm because there was nothing else that could have

been done for him during January and February of 2008. Martinez argues that

she was following the orders of Smith’s doctor and that any decision to deviate

from those orders could amount to no more than medical malpractice. Finally

she argues that, assuming she ignored Smith, she knew that he was being

treated by the medical staff at the jail. These arguments are all directed to the

truth of the factual allegations made by Smith and not “at whether the facts,

taken as true, could legally support an inference of deliberate indifference.” 

Brown, 663 F.3d at 250. Accordingly, we do not have jurisdiction to review the

district court’s conclusion that there was a factual dispute as to what Martinez

knew of Smith’s underlying illness and deteriorating physical condition and

what can be inferred by her failure to take any action on his behalf based on his

worsening symptoms. See id. at 249-50. 

APPEAL DISMISSED.

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