* 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.

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 Forcht 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

Clerk
No. 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

of a 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 if an inmate manifested symptoms of infection, 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 staff finally 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 Sciences

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 “10 out of 10” 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 prison
No. 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 Rocephin 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.

The defendants moved for summary judgment, arguing they were entitled

to qualified immunity. The district court denied the motion and stated that

several issues of material 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

summary judgment is “not appealable if [it is] based on a claim regarding

the sufficiency ofthe evidence. . . . Therefore, ifthe district court concludes

that the summary judgment record raises a genuine issue of material 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 issues
No. 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 determining whether qualified immunity is available, we use a two-step

inquiry: (1) “[t]aken in the light most favorable to the 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 the context ofthe case?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

against cruel 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 unsuccessful treatment does not evince deliberate indifference,8 nor does a

disagreement between the prisoner and officials regarding the appropriate
No. 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 of Monceaux’s arguments run afoul

of precedent. For instance, in the district court and on appeal, Monceaux argues

that the nursing staff should 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 if the prisoner’s symptoms include signs of infection. 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 to a hospital, and thatthe decision was negligent;

he argues the nursing staff delayed the decision by approximately five days since

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 treatment
No. 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]f an 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

thatthe defendant–official being suedhad been exposed to information concerning the risk and

thus must have known about it, then such evidence could be sufficient to permit a trier of fact

to find thatthe defendant–official had actual knowledge ofthe 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.12

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 if the 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.15 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.17
No. 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

nurses who primarily treated Lawson . . . had actual knowledge of the risk posed by [Lawson’s

injury].”).

7

Defendants argue that the district court erred because it used the

defendants’ cumulative actions to support its conclusion that a material issue of

fact existed.18 While the district court’s order does not name defendants

individually, the order indicates 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 to grant

summary judgmentin favor of Lieutenant White. Essentially, Monceaux alleges

White made unsympathetic comments and threatened to “write [Monceaux] up”

for “g[etting] smart” with Nurse Van Wert. But the record does not indicate that

Lieutenant White was aware of the 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, Lieutenant White called 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, we
No. 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 whether 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 of the 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 Hall,

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 evidenced

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 Hall for the proposition that defendants argue, and

we find the instant case and Hall distinguishable. In Hall, 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 thatthe district court properly denied summary judgment in

favor of 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.