* Pursuant to 5 TH 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited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 March 9, 2007 Charles R. Fulbruge III Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-30444

MAE THOMPSON LEE, Plaint iff- Appellant,

versus RICHARD L. STALDER, et al., Defendants-Appellees.

Appeal from the United States District Court fo r the Middle District of Louisiana

(04-CV-410)

Before JONES, Chief Judge, and JOLLY and STEWART, Circuit Judges. PER CURIAM: * Mae Lee appeals a grant of summary judgment based on qualified immunit y and the denial of a Rule 56(f) Motion to Continue. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND Gregory Lee (“inmat e Lee”) died at Elayn Hunt Correctional Center (“EHCC”) on June 22,2

2003. Inmate Lee’s mother, Mae Lee (“Lee”), filed suit against various Louisiana state officials and pri son employees alleging th at her son’s civil rights under the Eighth and Fourteenth Amendment s
were vio lat ed and seeking damages under 42 U.S.C. §1983. Only Dr. Michael Edwards Hegmann (“Dr. Hegmann”) and Nurse Kathy Hancock (“Hancock”) remain as defendants. When inmate Lee arrived at EHCC, Dr. Hegmann was medical director and Hancock was a licensed nurse practi tioner and resident nurse. Inmate Lee was received at EHCC on Tuesday, June 17, 2003, pursuant to a transfer from another facilit y. Inmate Lee arrived in a mentally agitated state and required physical restraints. The report from the transferring facilit y indicated th at inmat e Lee was HIV positive. He was placed in the ment al health nursing unit both to have medication administ ered and to receive treatm ent from ment al health providers. Dr. Hegmann and Nurse Joni Nickens, who had special qualifications in treating HIV positive patients, were called in t o evaluate inmate Lee. Dr. Hegmann concluded that inmat e Lee was “very sick.” Nickens ordered a standard blood analysis, chest x-ray, HIV viral load, and a CD4 count, as part of the normal in-processing fo r a newly received sick inmat e wit h HIV. Inmate Lee’s blo od tests

came back on Friday, June 20, 2003, and were review e d by Hancock. The tests showed abnormal values, which Hancock concluded were consis tent with inmat e Lee’s HIV positive condition. Hancock did not believe the tests represented an emergency condition. He scheduled inmat e Lee to be seen and to have the lab results evaluated the following Monday, June 23, 2003, by Nickens. Inmate Lee was not placed on anti-viral medications. Dr. Hegmann testified that if an HIV patient is started on a regimen of anti-viral medications but he is non-compliant, the HIV is known to mut ate, becoming resistant to the anti-virals and rendering the anti-virals ineffect ive in the future3

treatm ent of the patient’s HIV. Nickens had the training and experience to conduct such counseling regarding anti-viral drugs for HIV patients. Inmate Lee died on Sunday, June 22, 2003, before meeting wit h Nickens and thus, before the necessary process for beginning anti-viral medications could be completed. Shortly before he died, he was observed walking around and did not appear to be suffering from an emergency condition. The autopsy revealed th at the cause of death was mo st likely heart trouble. Dr. Hegmann testified that he believed inmat e Lee’s sudden death resulted from a cardiac arry thmia caused by com

plications of HIV. On Septem

ber 6, 2005, defendant’s mo tion fo r summary judgment was referred to the Magistrate Judge. On November 8, Lee filed a Motion for Leave to Extend Time to take the depositions of Dr. Hegmann and Hancock. That mo ti on was granted. Lee f iled t wo Motions to Com pel and Alt ernatively fo r Additional Discovery, the second of which was granted in part and denied in part. On February 2, 2006, the Magi strate Judge issued a memorandum opinion

recom mending th at the district court grant the def endants’ Motion for Summary Judgment. On February 16, Lee filed a Rule 56(f) Motion fo r Continuance of the defendants’ mo tion fo r summary judgment. The district court denied Lee’s Rule 56(f) mo tion and ado pted the Magi strate Judge’s findings. II. STANDARD OF REVIEW A. We review de novo the denial of summary judgment predicated on qualified immunit y. Beltran v. City of El Paso , 367 F.3d 299, 302 (5th Cir. 2004). We use a two-step approach to analyze qualified immunit y claims. P rice v. Roark , 256 F.3d4

364, 369 (5th Cir. 2001). First, we “consider whether the facts alleged , taken in t he light mo st favorable to the party asserting the injury, show that the of ficer’s conduct vio lat ed a constitutional right.” I d

. (citing Saucier v. Katz , 533 U.S. 194, 201 (2001)). If the plaint iff’s allegations could make out a constitutional vio lat io n, we then “ask whether the right was clearly established--that is, whether ‘it would be clear to a reasonable of ficer that his conduct was unlawful in the situation he confronted.’” Id

. (quoting Saucier, 533 U.S. at 201). “If, upon viewing the evidence in the light mo st favorable to the [plaint iff] , reasonable public of ficials could differ on the lawfulness of the defendant’s actions, the defendant is entitled to qualified immunit y. ” Southard v. Tex. Bd. of Criminal Justice , 114 F.3d 539, 550 (5th Cir. 1997). This inquiry is an objective one, not dependant on the particular of ficer’s subjective beliefs. Anderson v. Creighton , 483 U.S. 635, 640 (1987). B. Rule 56(f) provides non-movants wit h an impo rtant tool “t o keep open the doors of discovery in order to adequ a tel

y com bat a summary judgment mo tion.” Wichita Falls Office Assoc. v. Banc One Corp. , 978 F.2d 915, 919 (5th Ci r. 1992). The rule authorizes a district court to “order a continuance to permit affidavit s to be taken or depositions to be taken or discovery to be had,” if the non-movant files affidavit s showing th at he or she “cannot fo r reasons stated present by affidavit facts necessary to justify t he party ’s opposition.” Rule 56(f). Although motions under Rule 56(f) “are favored and should be liberally granted,” the denial of such a motion is reviewed for abuse of discretion. B eattie v. Madison County Sch. Dist. , 254 F.3d 595, 605-06 (5th Cir. 2001). A non-movant seeking relief under Rule 56(f) must “show (1) why she needs additional discovery and (2) how that di scovery will create a genuine issue of material fact.” I d

. at 605. The non-movant cannot “simply rely on vague assertions that additional discovery will produce needed, but5

unspecified, facts.” K

araha Bodas Co. v. Perusahaan Pertambangan Minyak Dan Gas Bumi Negara , 364 F.3d 274, 305 (5th Cir. 2004). III. DISCUSSION A. The Government has an obligation to provide medical care fo r those whom it is punishing by incarceration, and deliberate indifference to serious medical needs of pri soners constitutes the “unnecessary and wanton infliction of pain,” proscribed by the Eighth Amendment. See , U.S.C.A. Const. Amend. 8; Estelle v. Gamble , 429 U.S. 97 (1976). In order to make out a claim of deliberate indifference, as part of the first prong of this Court’s qualified immunity test, a petitioner must demonstrate th at pri son of ficials knew of and disregarded a substantial ri sk of serious harm. See , e.g ., Farmer v. Brennan , 511 U.S. 825, 837 (1994); Domino v. Texas Dep’t of Crim. Justice , 239 F.3d 752, 755 (5th Cir. 2001). Therefore, Lee must demonstrate that Dr. Hegmann and Hancock knew of and disregarded an excessive risk that inmate Lee would die from HIV complications. Deliberate indifference is an extremely difficult standard to meet. Incorrect diagnosis, by it self, is insufficient to past muster. “The plaint iff must show th at the of ficials ‘refused to treat him, ignored his com plaint s, int entionally treated him incorrectl y, or engaged in any similar conduct that would clearly evince a wanton disregard fo r any serious medical needs.’” Domino , 239 F.3d at 756 (quoting Johnson v. Treen , 759 F.2d 1236, 1238 (5th Cir. 1985)). In the case of inmat e Lee, there is insufficient evidence of deliberate indifference. The test results that Hancock reviewed did not indicate inmat e Lee’s heart condition. Furthermore, there is lit tle evidence to suggest th at inmat e Lee’s blo od test results, al t hough generally abnormal, were abnormal as com

pared to other HIV patients. Both Dr. Hegmann and Hancock testified that inmat e6

Lee’s abnormal enzyme levels were consistent wit h HIV patients. Dr. Hegmann testified that had he viewed inmat e Lee’s test results on Friday, he would have done nothing mo re than what Hancock already had done, which was to schedule a meeting with the HIV specialist the fo llo wing Monday. Lee argues th at Dr. Hegmann and Hancock’s failure to perform a chest x-ray before inmat e Lee died indicates deliberate indifference; however, even if a chest x-ray had been performed immediat ely on Tuesday, it would not have discovered the heart defect which ult imat ely led to inmat e Lee’s death. Furthermo re, even if t he x-ray would have discovered the defect and doctors sub sequentl

y made an incorrect diagnosis as to how to treat it, there would still be no deliberate indifference. See Johnson , 759 F.2d at1238. Because Lee cannot make out deliberate indifference, her claim fails the first prong of this Court’s qualified immunit y analysis, which is “ whether the facts alleged, taken in t he l ight mo st favorable to the party asserting the injury, show that the officer’s conduct violated a constitutional right.” Price , 256 F.3d at 369. B. “Because the burden on a party resisting summary judgment is no t a heavy one, one must conclusively justify his entitlement to the shelter of Rule 56(f) by presenting specific facts explaining the inabilit y t o make a substantive response as required by Rule 56(e) and by specifically demonstrating ‘how postponem ent of a rul

ing on the motion will enable him, by discovery or other means, to rebut the mo vant’s showing of the absence of a genuine issue of fact.’” SEC v. Spence & Green Chem. Co. , 61 2 F.2d 896, 901 (5th Ci r. 1980) (quoting W

illmar Poultry Co. v. Morton-Norwich Prod., Inc. , 520 F.2d 289, 297 (8th Cir. 1975)). Alt hough the district court has the discretion to allow more discovery following a magistrate judge’s report and recommendation, the7

court is also allo wed to consider whether there were ample opportunities fo r parti es to conduct discovery beforehand. Spence & Green Chem. Co. , 612 F.2d at 900 (di scussing First Nat’l Bank v. Cities Serv. Co. , 391 U.S. 253, 294-99 (1968) (holding th at a continuance of summary judgment need not be granted particularly when ample time and opportunities fo r discovery have already lapsed); see also Freeman v. County of Bexar, 142 F.3d 848, 852 (5th Cir. 1998) (finding that the district court is free to consider additional evidence and should not be compelled to ignore that the parties had a full and fair opportunity to present their best evidence to the magistrate judge). Alt hough co urts should liberally construe Rule 56(f) in favor of allowing discovery to proceed, “[l]itigants may not . . . use” the court “as a mere sounding-board fo r the sufficiency of the evidence.” Freeman , 142 F.3d at 852. The district court’s abilit y to deny Lee’s request fo r additional discovery is wit hin it s discretion, and Lee has presented lit tle evidence describing how additional discovery would produce needed facts, namely any contradictory medical evide nce or expert affid avit s in support of the claim fo r deliberate indifference. The report of Dr. Cohen, which the Magistrate Judge excluded, describing it as a “wide-ranging critique of decedent Lee’s medical care,” did not go to the ult imat e issue of proving whether there was deliberate indifference by Dr. Hegmann and Hancock. Because Lee has failed to identify any unspecified facts which may be revealed through additional discovery, the district court did not abuse its discretion. IV. CONCLUSION For the foregoing reasons, the judgment of the district court is AFFIRMED. AFFIRMED.