* Pursuant to 5 TH 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH CIR
. R. 47.5.4.

### IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-30425 Summary Calendar

CARLTON G. MONCEAUX, Plaintiff–Appellee, v. JOHNNY WHITE, Lieutenant; CLEONA LEWIS; SYBIL VAN WERT, Nurse; LONA BASS, Nurse; W. COLT PALMER; DOROTHY RASMUSSEN, Defendants–Appellants.

Appeal from the United States District Court for the Western District of Louisiana USDC No. 5:06-CV-924
Before HIGGINBOTHAM, STEWART, and OWEN, Circuit Judges. PER CURIAM: * Carlton Monceaux, an inmate at the Forc ht Wade Correctional Center (FWCC) sued several FWCC nurses and one guard (collectively, defendants) under 42 U.S.C. § 1983, alleging deliberate indifference to his serious medical needs. The defendants moved for summary judgment on the basis of qualified United States Court of Appeals

Fifth Circuit 

### F I L E D February 21, 2008 Charles R. Fulbruge III ClerkNo. 07-30425

2 immunity. The district judge denied summary judgment, and the defendants appealed. We affirm as to the nurses and reverse as to the guard. I In August 2005, Carlton Monceaux was an inmate at the FWCC in Caddo Parish, Louisiana. On August 26, 2005, he went to the infirmary complaining ofa painful and infected thumb. The nursing staff cleaned the area, applied an antibiotic ointment, and bandaged his thumb. The nursing staff provided the
same treatment for approximately five days, while his thumb became progressively worse. On the second day, his thumb was red, warm to the touch, and swollen to twice its size. The next day, it was swollen and bluish in color. FWCC standing treatment orders for nursing staff directed nurses to notify a doctor ifan inmate manifested symptoms ofinfection, defined as “redness, heat, or swelling.” The record indicates that five nurses saw Monceaux, and all five failed to notify a doctor. Though the date is in dispute, Monceaux admits that he resorted to self-help by lancing his thumb with a pin and finger-nail clippers during treatment. On August 31, 2005, a member of FWCC’s nursing stafffinally notified a doctor, but the appointment was delayed for two days. On September 3, 2005, Dr. Hearne, a prison physician, ordered that Monceaux receive three injections of Rocephin, an antibiotic. The injections were ineffective, and Monceaux was transported two days later to the Louisiana State University Health Scienc es Center (LSU) in Shreveport. The summary judgment evidence indicates that Monceaux was in extreme pain; his hospital records state that Monceaux described his pain as a “10out of10” on the hospital’s pain scale. Two days later hospital physicians amputated Monceaux’s thumb due to a severe antibioticresistant staph infection. Monceaux sued defendants, which include five members of the nursing staff—Nurses Bass, Rasmussen, Van Wert, Palmer, and Lewis—and a prisonNo. 07-30425

1 Kinney v. Weaver, 367 F.3d 337, 346 (5th Cir. 2004) (en banc) (citations omitted).

2 Id. (citations omitted).

3 Gobert v. Caldwell , 463 F.3d 339, 344 (5th Cir. 2006) (citations omitted) (brackets in original). 3 guard, Lieutenant White. Monceaux has not sued the prison physician, Dr. Hearne, who ordered the Roc ephin shots and the transfer to LSU. Monceaux alleges that the defendants were deliberately indifferent to his serious medical needs and either failed to provide him adequate medical care or delayed and obstructed his treatment resorting in a substantial harm thereby violating his Eighth Amendment rights. Thedefendants moved for summaryjudgment, arguing they wereentitled to qualified immunity. The district court denied the motion and stated that several issues ofmaterial fact existed, particularly “the nurses’ repeated failure to contact a physician, as required by the prison’s standing order, until at least five days after plaintiff’s initial presentation of an infection.” The defendants now appeal that decision. II A district court’s denial of a motion for summary judgment based on qualified immunity is a collateral order that we may review immediately. 1 But
our jurisdiction on such an appeal is limited only to the extent that the denial turns on legal issues. 2 A district court’s decision to deny qualified immunity on a motion for summaryjudgment is “not appealable if [it is] based on a claim regarding thesufficiency oftheevidence.

. . . Therefore, ifthedistrictcourt concludes that the summaryjudgment record raises a genuine issue ofmaterial fact with respect to whether . . . qualified immunity is applicable, then that decision is not immediately appealable. . . .”3 When a defendant appeals such a denial, the “official must be prepared to
concede the best view of the facts to the plaintiff and discuss only legal issuesNo. 07-30425

4 Gonzales v. Dallas County, 249 F.3d 406, 411 (5th Cir. 2001) (citations omitted).

5 Scott v. Harris, 127 S. Ct. 1769, 1774 (2007) (citations omitted).

6 Gobert, 463 F.3d at 345-46.

7 Estelle v. Gamble

, 429 U.S. 97, 104-05 (1976).

8 Id. at 106. 4 raised by the appeal.”4 In determiningwhether qual ified immunity is available, we use a two-step inquiry: (1) “[t]aken in the light most favorable tothe party asserting the injury, do the facts alleged show the officer’s conduct violated a constitutional right,” and (2) was the right clearly established within thecontext ofthecase?5 We note at the outset that defendants concede that the right to adequate medical care while imprisoned was a clearly established constitutional right at the time of Monceaux’s injury. A Defendants first argue that Monceaux failed to allege a violation of a constitutional right. Finding a violation of the Eighth Amendment’s prohibition againstcruel and unusual punishment requires a bipartite analysis: the plaintiff must prove (a) objective exposure to a substantial risk of harm, and (b) the prison officials acted or failed to act with deliberate indifference. 6 We think the loss of Monceaux’s thumb satisfies the first prong and are concerned only with the latter prong in this case. The defendants concede that it is clearly established that an inmate is entitled to adequate medical care while incarcerated, and that deliberate indifference to a prisoner’s serious medical needs violates the Eighth Amendment. 7 Nonetheless, they argue mere negligence, medical malpractice,
or unsuc

cessful treatment does not evince deliberate indifference, 8 nor does a disagreement between the prisoner and officials regarding the appropriateNo. 07-30425

9 Gobert, 463 F.3d at 346.

10 Estelle

, 429 U.S. at 107 (“But the question of whether an X-ray or additional diagnostic techniques or forms of treatment is indicated is a classic example of a matter for medical judgment. A medical decision not to order an X-ray, or like measures, does not represent cruel and unusual punishment.”). 5 medical treatment, absent exceptional circumstances. 9 The defendants argue that Monceaux approached the nursing staff with a medical condition, which was treated. Therefore, they argue Monceaux’s case is merely a disagreement with treatment and is not actionable. Defendants correctly argue that some ofMonceaux’s arguments run afoul ofprecedent. For instance, in the district court and on appeal, Monceaux argues that the nursing staffshould have ordered diagnostic tests, such as a culture of his finger. Were this to be the only basis for Monceaux’s claim, summary judgment would have been appropriate given Supreme Court precedent. 10 But Monceaux alleges more than negligent mistreatment. He alleges that the defendants delayed treatment that resulted in substantial harm. The standing treatment orders for FWCC nursing staff require nurses to notify a medical doctor ifthe prisoner’s symptoms include signs ofinfection. The text of the standing order does not grant discretion to the nurses, and the record does not indicate that the nurses have discretion regarding the necessity of doctor notification. The evidence also indicates that only a doctor can order certain medical treatment (such as the injection of antibiotics) or refer a prisoner for transfer to a hospital. Thus, Monceaux does not allege, as defendants contend, that the nursing staff made a medical decision against administering certain treatment or transferring him toa hospital, and that the decision was negligent; hearguesthe nursing staffdelayed thedecision by approximately fivedayssince the evidence indicates only a doctor could make those treatment decisions and a doctor was not notified per the standing order. A delay in medical treatmentNo. 07-30425

11 Mendoza v. Lynaugh, 989 F.2d 191, 195 (5th Cir. 1993).

12 Easter v. Powell , 467 F.3d 459, 463 (5th Cir. 2006) (citing Farmer v. Brennan, 511 U.S. 825, 829 (1994)).

13 Farmer, 511 U.S. at 838.

14 See Easter, 467 F.3d at 463 (“[I]fan Eighth Amendment plaintiff presents evidence showing that a substantial risk of inmate attacks was long-standing, pervasive, welldocumented, or expressly noted by prison officials in the past, and the circumstances suggest that thedefendant–official beingsued had been exposed toinformation concerning the risk and thus must have known about it, then such evidence could be sufficient to permit a trier offact tofind that thedefendant–official had actual knowledgeofthe risk.” (quoting Farmer, 511 U.S. at 842-43)).

15 Lawson v. Dallas County, 286 F.3d 257, 263 (5th Cir. 2002) (finding nurses deliberately indifferent after they disregarded a doctor’s orders regarding inmate’s treatment requirements).

16 Id. at 263.

17 Cf. id. 6 due to deliberate indifference and resulting in substantial harm violates the Eighth Amendment. 11 Deliberate indifference requires a showing that the official was subjectively aware of and disregarded a risk of serious harm to the inmate. 1 2 The Supreme Court has equated it with the subjective recklessness standard defined by criminal law. 13 Notably, a prison official’s knowledge of a substantial risk of harm may be inferred ifthe risk is obvious. Obvious risks include those that a prison official has noted in the past and made other officials aware of; 14 it also includes disregarding a doctor’s orders. 1 5 Like Farmer and Lawson, FWCC’s standing orders directing nurses to notify a prison doctor in the event of certain symptoms suggests a known, obvious risk. Moreover, the evidence indicates that each nurse went through orientation, during which the nursing staff learned the standing orders. While deliberate indifference cannot be inferred from a prison official’s mere negligence, 16 it can be inferred from nurses who know of but disregard standing orders such as those in this case. 17No. 07-30425

18 See Stewart v. Murphy, 174 F.3d 530, 537 (5th Cir. 1999) (“[E]ach defendant’s subjective deliberate indifference, vel non, must be examined separately.”).

19 See Lawson, 286 F.3d at 262 (“[T]he defendants contend that the district court improperly applied the Farmer deliberate indifference test to the collective knowledge and collective response of the jail medical staff as a whole, rather than focusing on specific employees.

. . . It is clear from reading the opinion that the district court believed that all nurseswho primarily treated Lawson

. . . had actual knowledge ofthe risk posed by [Lawson’s injury].”). 7 Defendants argue that the district court erred because it used the defendants’ cumulative actions tosupport its conclusion that a material issue of fact existed. 18 While the district court’s order does not name defendants individually, the order i ndicates that a fact issue exists as to “the nurses’ repeated failure to contact a physician, as required by the prison’s standing order, until at least five days after plaintiff’s initial presentation of the infection.” This alone does not constitute error. 19 Moreover, both at summary judgment and on appeal, Monceaux has made factual allegations supported in the record against each individual nurse and the prison guard. Given our discussion, we believe a fact issue exists as to each nurse, who, according to the record, examined Monceaux and failed to notify a doctor per the standing order. This includes Nurses Rasmussen, Van Wert, Bass, Lewis, and Palmer. We do, however, hold that the district court erred when it refused togrant summaryjudgment in favor ofLieutenantWhite. Essentially, Monceaux alleges White made unsympatheticcomments and threatened to “write [Monceaux] up” for “g[etting] smart” with NurseVan Wert. But the record does not indicate that Lieutenant Whitewas aware ofthe standing orders, that they pertained to him, or that he could notify the doctor. More importantly, the record indicates that
on August 30, 2005, and September 5, 2005, LieutenantWhitecalled the nursing staff per Monceaux’s request. The record does not indicate that Lieutenant White ever declined Monceaux’s request to see the nursing staff. Thus, weNo. 07-30425

20 190 F.3d 693 (5th Cir. 1999).

21 Id. at 697.

22 Id. at 697-98. 8 conclude no material issue of fact exists regarding w hether Lieutenant White was deliberately indifferent. B The defendants argue that Monceaux also failed to allege a violation of constitutional rights because his finger did not become a serious medical need until September 5, 2005, the day he was transferred to LSU. This argument pertains to the sufficiency ofthe evidence, and thus we lack jurisdiction to hear it. C Citing Hall v. Thomas, 20 the defendants also argue that the trial court erred when it failed to consider inmate Monceaux’s resort to self help. In H all , an inmate sued prison medical personnel for deliberate indifference by failing to administer his seizure medicine. 21 This court found that the overwhelming evidence in Hall demonstrated that the inmate refused to take his medicine or failed to appear when nurses dispensed medication. 22 Defendants argue that Hall stands for the proposition that if an inmate fails to comply with medical personnel’s orders, “it is impossible that the medical personnel e videnced deliberate indifference.” Since none of the nurses or the prison guard told Monceaux to lance his thumb, none exhibited deliberate indifference, argue the defendants. We do not read H all for the proposition that defendants argue, and we find the instant case and Hall distinguishable. In H all , the inmate refused treatment; Monceaux self-treated. Perhaps if Monceaux had refused transfer to LSU or the antibiotic injections, then Hall would apply. * * *No. 07-30425

9 We conclude that the district court properly denied summaryjudgment in favor o f the nurses, but improperly denied summary judgment in favor of the prison guard. We therefore AFFIRM as to defendants Lewis, Van Wert, Bass, Rasmussen, and Palmer, and REVERSE as to defendant White.