Case: 21-20241 Document: 00516740422 Page: 1 Date Filed: 05/05/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
May 5, 2023
No. 21-20241
Lyle W. Cayce
____________ Clerk
Albert L. Thompson, Jr.,
Plaintiff—Appellant,
versus
Texas Department of Criminal Justice; Warden
Sanchez; Lieutenant Crawford,
Defendants—Appellees.
______________________________
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:18-CV-4059
______________________________
Before Higginbotham, Southwick, and Willett, Circuit Judges.
Patrick E. Higginbotham, Circuit Judge:
Albert Thompson suffered a stroke during his incarceration at a Texas
prison. He brought a claim under 42 U.S.C. § 1983 alleging that prison staff
delayed and impeded his access to emergency medical care after the onset of
his stroke symptoms. The district court dismissed his lawsuit as frivolous
under
28 U.S.C. § 1915(e)(2)(B)(i). We determine that Thompson brings
claims of malpractice, falling short of a deprivation of constitutionally
secured rights. We AFFIRM the district court’s dismissal with a
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No. 21-20241
LIMITED REMAND instructing the district court to address
Thompson’s motion to unseal his medical records.
I.
Thompson alleges that he suffered a brain stem stroke at
approximately 10:30 a.m. on January 11, 2017, while residing at a Texas state
prison, that at 10:45 a.m. he told medical staff at the prison’s clinic about his
symptoms, including difficulty swallowing, and that clinic nurses took
Thompson’s vitals and examined him but found nothing unusual. The nurses
then told him he was “faking” and ordered him to leave the clinic.
Thompson returned to his dormitory, where his condition worsened, other
inmates took notice, and an inmate called Thompson’s sister. Thompson
returned to the clinic at 1:30 p.m. complaining of a “stiffening” face,
weakness, and disorientation. When he again requested assistance, medical
staff told him he had already been evaluated and allegedly threatened him
with a disciplinary case if he did not return to his unit. Thompson’s sister
called the prison repeatedly between 2:25 p.m. and 6:00 p.m., reaching
several prison staff members and notifying them of Thompson’s condition.
When Thompson returned to the clinic for the third time, a nurse examined
him and again found nothing abnormal. Medical staff placed him in a holding
cell for a further hour and a half without further treatment.
After Thompson returned to the clinic, an unknown party called 911, 1
and an ambulance arrived at the prison at approximately 8:40 p.m. Prison
staff told the arriving emergency medical technicians (“EMTs”) that
Thompson had already received care and continued to accuse him of faking
symptoms, but the EMTs insisted on evaluating him. The EMTs determined
that Thompson required hospitalization and departed without him around
_____________________
1
Thompson’s complaint implies that his sister placed the call.
2
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9:15 p.m. A prison vehicle transported Thompson to a local hospital at 10:50
p.m. after he spent another hour and a half in the clinic’s holding cell.
At the hospital, Thompson was diagnosed with a brain stem stroke
and severe dehydration, as he had been unable to swallow liquids for more
than 24 hours. He remained hospitalized for several weeks. Thompson
alleges that the 12-hour delay in emergency medical care resulted in central
post-stroke pain, neuropathic nerve issues on his right side, facial
disfigurement on his left side, and a fall due to dehydration, among other
consequences.
Thompson filed a pro se, in forma pauperis lawsuit against prison
medical staff, guards, supervisors, and various state entities. 2 The district
court construed Thompson’s suit as a § 1983 claim for denial of adequate
medical treatment. He also challenged the prison’s grievance system and
failure to follow state rules and regulations, but he abandoned these issues on
appeal.3 The district court accepted a more definite statement of
Thompson’s claim but did not conduct a Spears hearing.4 Texas also
provided a Martinez report,5 although its record begins at approximately 9:00
p.m. on July 11 and focused on the standard of care provided to Thompson at
_____________________
2
Thompson also sued several state entities that enjoy sovereign immunity in
federal court under the Eleventh Amendment. See Aguilar v. Texas Dep’t of Crim. Just., 160
F.3d 1052, 1054 (5th Cir. 1998). We therefore do not further address his claims against
Texas state agencies on appeal.
3
See Roy v. City of Monroe, 950 F.3d 245, 251 (5th Cir. 2020).
4
“The purpose of a Spears hearing is to determine whether [in forma pauperis]
status should be granted or the case should be dismissed under 28 U.S.C. § 1915(d).”
Wilson v. Barrientos,
926 F.2d 480, 481 n.2 (5th Cir. 1991).
5
A district court may obtain a Martinez report from the state “to further flesh out
the facts behind a prisoner’s complaint” at the screening or dismissal stage. Davis v.
Lumpkin, 35 F.4th 958, 963 (5th Cir. 2022).
3
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the hospital. Although Thompson asked the district court to order a reply,
the defendants have yet to answer his complaint.6
Proceeding under § 1915(e)(2)(B)(i), the district court dismissed as
frivolous in forma pauperis filings, finding that Thompson received adequate
medical care after transportation to the hospital and determining that
Thompson’s claims summed to negligence, not to a constitutional tort; that
Thompson did not allege facts demonstrating that the defendants—neither
staff nor supervisors—were aware of and disregarded a substantial risk of
harm to him. Thompson appeals, arguing that the district court (1) erred in
resolving disputed facts during screening; (2) erred in concluding that he
failed to state a claim; (3) erred in determining that the warden and medical
director were not liable as supervisors; and (4) abused its discretion in failing
to rule on pending motions.7
II.
A district court may dismiss an in forma pauperis complaint under
§ 1915(e)(2)(B)(i) “if it has no arguable basis in law or fact.” 8 We have held
that “[a] complaint lacks an arguable basis in law if it is based on an
indisputably meritless legal theory, such as if the complaint alleges the
violation of a legal interest which clearly does not exist.”9 This court will
“review the dismissal of a complaint under 28 U.S.C. § 1915(e)(2)(B)(i) as
_____________________
6
See 42 U.S.C. § 1997e(g)(2).
7
We liberally construe Thompson’s pro se brief. See Andrade v. Gonzales, 459 F.3d
538, 543 (5th Cir. 2006). This court did not require the defendants to file a response to
Thompson’s brief on appeal.
8
Ruiz v. United States, 160 F.3d 273, 274–75 (5th Cir. 1998).
9
Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir. 1997).
4
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frivolous for abuse of discretion.”10 “A trial court abuses its discretion when
its ruling is based on an erroneous view of the law or a clearly erroneous
assessment of the evidence.”11 Because a district court must find a claim
insufficient before holding it frivolous, this deferential review does not
necessarily insulate a district court’s determination that the in forma pauperis
plaintiff failed to state a claim, as that is a pure question of law.12
A district court may obtain a Martinez report to frame its evaluation
of a prisoner’s in forma pauperis claim. “A Martinez report is produced as a
result of prison officials’ investigating the prisoner’s complaints and
compiling an administrative record that acts like an affidavit to aid the district
court in screening the complaint.”13 The report serves only to “sort and
clarify issues raised in a pro se complaint.”14 We recently held in Davis v.
Lumpkin that “if the Martinez report conflicts with the pro se plaintiff’s
allegations, the district court must accept the plaintiff’s allegations as true,
not the records in the report.”15
_____________________
10
Geiger v. Jowers, 404 F.3d 371, 373 (5th Cir. 2005).
11
United States v. Yanez Sosa, 513 F.3d 194, 200 (5th Cir. 2008) (quoting United
States v. Ragsdale,
426 F.3d 765, 774 (5th Cir. 2005)).
12
Black v. Warren, 134 F.3d 732, 734 (5th Cir. 1998) (“We . . . employ the same de
novo standard to review the § 1915(e)(B)(ii) dismissal as we use to review dismissal
pursuant to 12(b)(6).”); Fernandez-Montes v. Allied Pilots Ass’n,
987 F.2d 278, 284 n.9 (5th
Cir. 1993) (“The dismissal of a complaint under Fed. R. Civ. P. 12(b)(6) is a question of
law.”); accord Edwards v. Snyder,
478 F.3d 827, 830 (7th Cir. 2007) (observing that “[e]n
route to determining that a claim is frivolous, the district court must determine whether it
is legally insufficient, an issue purely of law on which appellate review is plenary” (quoting
Billman v. Ind. Dep’t of Corr.,
56 F.3d 785, 787 (7th Cir. 1995))).
13
Davis, 35 F.4th at 963 (citations omitted).
14
Id. at 964 (quoting Janke v. Price,
43 F.3d 1390, 1392 (10th Cir. 1994)).
15
Id.
5
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Thompson argues that the district court erred in resolving various
contested facts based on the Martinez report. Thompson’s complaint alleges
that medical staff evaluated him but provided no medical interventions prior
to transportation to the hospital, facts that must be taken as true at this stage
of litigation.16 The district court relied on the “more complete record” in the
Martinez report to elucidate details about these medical evaluations, but we
find nothing in the district court’s opinion that contradicts the claims in
Thompson’s initial pleadings. The district court did not, for example, find
that the prison nurses provided medical care that Thompson insists never
took place. And Thompson agrees that he received significant medical care
following his stroke diagnosis.17
The law is “clearly established that a prison inmate [can] demonstrate
an Eighth Amendment violation by showing that a prison official ‘refused to
treat him, ignored his complaints, intentionally treated him incorrectly, or
engaged in any similar conduct that would clearly evince a wanton disregard
for any serious medical needs.’”18 The plaintiff must allege “a deprivation of
_____________________
16
Thompson alleges that the district court resolved other facts against him, such
as the sufficiency of his care prior to transport or the harm he suffered. The district court
did not resolve these allegations based on the Martinez report, but rather relied on the facts
in Thompson’s complaint to determine that he failed to state a claim.
17
The district court observed as much, noting that “Thompson establishes much
of this by his own admission, acknowledging that he received treatment for his stroke.”
18
Easter v. Powell, 467 F.3d 459, 464 (5th Cir. 2006) (quoting Domino v. Tex. Dep’t
of Crim. Just.,
239 F.3d 752, 756 (5th Cir. 2001)); see also Austin v. Johnson,
328 F.3d 204,
210 (5th Cir. 2003) (“Since Estelle v. Gamble . . . state officers have been on notice that
deliberate indifference to a prisoner’s serious medical needs violates the Eighth
Amendment.”). Our sister circuit has commented that “[a] sufficiently serious medical
need is one that has been diagnosed by a physician as mandating treatment or one that is so
obvious that even a lay person would easily recognize the necessity for a doctor’s
attention.” Helphenstine v. Lewis County, Kentucky,
60 F.4th 305, 318 (6th Cir. 2023)
(quoting Griffith v. Franklin County, Kentucky,
975 F.3d 554, 567 (6th Cir. 2020)).
6
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medical care sufficiently serious to show that ‘the state has abdicated a
constitutionally-required responsibility to attend to his medical needs.’”19
To amount to a constitutional violation, delayed medical treatment must
result from deliberate indifference that harms the prisoner.20
Deliberate indifference exists when an “official knows of and
disregards an excessive risk to inmate health or safety.”21 The required
mental state amounts to “subjective recklessness,” 22 “a question of fact
subject to demonstration in the usual ways, including inference from
circumstantial evidence.”23 And “[u]nder exceptional circumstances, a
prison official’s knowledge of a substantial risk of harm may be inferred by
the obviousness of the substantial risk.”24 Negligence and mistakes during
treatment do not constitute deliberate indifference. 25 A supervisory official
may be held liable under § 1983 for a subordinate’s actions in some
circumstances, but that supervisor must also show deliberate indifference to
_____________________
19
Harris v. Hegmann, 198 F.3d 153, 159 (5th Cir. 1999) (quoting Bienvenu v.
Beauregard Parish Police Jury,
705 F.2d 1457, 1460 (5th Cir. 1983)).
20
Mendoza v. Lynaugh, 989 F.2d 191, 193 (5th Cir. 1993).
21
Farmer v. Brennan, 511 US 825, 837 (1994).
22
Id. at 839.
23
Id. at 842.
24
Reeves v Collins, 27 F3d 174, 176 (5th Cir 1994) (citation omitted).
25
Farmer, 511 US at 835; Estelle v. Gamble,
429 U.S. 97, 105 (1976) (“An accident,
although it may produce added anguish, is not on that basis alone to be characterized as
wanton infliction of unnecessary pain.”); Gibbs v. Grimmette,
254 F.3d 545, 549 (5th Cir.
2001).
7
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a harmful failure to train or supervise.26 We have observed that “[d]eliberate
indifference is an extremely high standard to meet.”27
We have held, for example, that deliberate indifference did not exist
where medical staff declined to provide a tuberculin skin test to an inmate
who was later found to have tuberculosis.28 The staff in that case lacked the
required knowledge of a substantial risk, as prison policy disfavored
asymptomatic tests and medical staff did not know of any active cases of
tuberculosis.29 In another case, we held that a doctor’s failure to discover a
patient’s ulcer during treatment did not amount to deliberate indifference
because medical staff did not disregard any known risks to the prisoner.30 In
a case resolved on summary judgment, we concluded that a prison
psychiatrist did not disregard a risk when he incorrectly concluded that a
prisoner was not a suicide risk while providing mental health services.31 We
also found no deliberate indifference where a prisoner received extensive but
ineffective medical treatment related to his leg infection.32
In contrast, we reversed a dismissal for frivolousness where the
prisoner reported a broken jaw to nursing staff, who refused care and
scheduled a future appointment with the prison doctor.33 Prison medical staff
then declined for a week to examine the prisoner or address painful
_____________________
26
Smith v. Brenoettsy, 158 F.3d 908, 911–12 (5th Cir. 1998).
27
Domino, 239 F.3d at 756.
28
Gibbs, 254 F.3d at 551.
29
Id. at 550.
30
See Stewart v. Murphy, 174 F.3d 530, 534, 537 (5th Cir. 1999).
31
Domino, 239 F.3d at 756.
32
See Gobert v. Caldwell, 463 F.3d 339, 351 (5th Cir 2006).
33
Harris, 198 F.3d at 154.
8
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symptoms arising from his recent surgery.34 We held that the plaintiff stated
a claim based on his assertion that the defendants “ignored his urgent and
repeated requests for immediate medical treatment for his broken jaw and his
complaints of excruciating pain,” and that the defendants were “made aware
of, and disregarded, a substantial risk to [the prisoner’s] health when they
denied him treatment.”35 In another case, we found the standard satisfied
with allegations that a nurse “refused to provide any treatment to, and
ignored the complaints of, a patient suffering from severe chest pain that she
knew had a history of cardiac problems.”36 In addition, “failure to call an
ambulance for almost two hours while [a prisoner] lay unconscious and
vomiting rises to the level of deliberate indifference” given the obvious
nature of the risk.37
We first address whether Thompson successfully claims that any
defendants knew of a substantial risk of harm to him. The pleadings indicate
that several defendants may have known of a health risk. Thompson
reportedly informed Nurse Speer of his symptoms in the morning, when
Nurse Hampton was also present. In the evening, he visited the clinic again
and told Nurse Adewoye about his symptoms. The pleadings lack facts,
however, indicating that other defendants subjectively knew of a risk to
Thompson’s health. Thompson faults Officer George and Nurse Bercauter,
who staffed the clinic during the afternoon. But the pleadings show that
Bercauter relied on Speer’s earlier examination to conclude that there was
_____________________
34
Id. at 155.
35
Id. at 159–60.
36
Easter, 467 F.3d at 464.
37
Austin, 328 F.3d at 210.
9
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“nothing wrong” with Thompson, meaning that Bercauter and George
lacked the requisite mens rea.38
Thompson also does not allege facts indicating that any supervisors
had knowledge of a health risk left unaddressed by staff. Thompson only
alleges, for example, that Dr. Hulipas, the facility’s medical director, “was
made aware of plaintiff’s condition, or should have been made aware, per
TDCJ’s emergency care protocol.” But such allegations fall short of facts
demonstrating that supervisors knew of a substantial risk of harm to
Thompson. And Thompson fails to put forward facts indicating that the
facility’s supervisors engaged recklessly in relation to broader training and
supervision of staff.39
We next ask whether any defendant with subjective knowledge of the
risk to Thompson disregarded that risk. Thompson states that Speer listened
to his complaints and examined him but found no emergency medical issues.
Adewoye also examined Thompson and found no abnormalities, theorizing
instead that he may have been experiencing psychiatric symptoms. Medical
staff failed to properly diagnose Thompson’s medical emergency in these
evaluations, but they did not disregard Thompson’s reported symptoms.
There is no indication in the pleadings that medical staff continued to
recognize a risk of harm to Thompson following these evaluations, or that
staff would have declined medical care had they recognized his condition as
requiring activation of emergency protocols.
We conclude that Thompson’s claim arises to medical negligence, not
deliberate indifference. Any officials who knew of a risk to Thompson acted
_____________________
38
Officer Yaya was in a similar position, with Thompson admitting that he “chose
to defer to medical staff.”
39
Smith, 158 F.3d at 912.
10
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on their concerns. Under the facts alleged, medical staff likely should have
identified Thompson’s emergency medical issue but failed to do so. Yet as
the Supreme Court has explained, “an official’s failure to alleviate a
significant risk that he should have perceived but did not, while no cause for
commendation, cannot under our cases be condemned” as deliberate
indifference and does not arise to a constitutional violation.40
III.
Thompson additionally claims that the district court abused its
discretion in failing to rule on four motions pending at the time of dismissal,
including a motion to appoint counsel, a motion for leave to file a second
amended complaint, an amended motion to strike, and a motion to unseal.
Because the district court did rule on remaining motions in its dismissal
order, we construe Thompson’s argument as challenging the district court’s
reasons, or lack thereof, for dismissing the motions. We review each of these
motions for abuse of discretion.41
This court has stated that “[a] § 1983 plaintiff, even if demonstrably
indigent, is not entitled to appointed counsel as a matter of right.”42 An
indigent plaintiff must first demonstrate that the claims raised meet “a
threshold level of plausibility” and then show “exceptional
_____________________
40
Farmer, 511 U.S. at 838.
41
Baranowski v. Hart, 486 F.3d 112, 126 (5th Cir. 2007) (motion to appoint
counsel); Marucci Sports, L.L.C. v. Nat’l Collegiate Athletic Ass’n,
751 F.3d 368, 378 (5th
Cir. 2014) (motion to amend); Cambridge Toxicology Grp., Inc. v. Exnicios,
495 F.3d 169, 178
(5th Cir. 2007) (citation omitted) (motion to strike); United States v. Holy Land Found. For
Relief & Dev.,
624 F.3d 685, 689 (5th Cir. 2010) (motion to unseal).
42
Naranjo v. Thompson, 809 F.3d 793, 799 (5th Cir. 2015) (citing Ulmer v.
Chancellor,
691 F.2d 209, 212 (5th Cir. 1982)).
11
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circumstances.”43 Thompson is correct that district courts should provide
“specific findings explaining why counsel was denied.”44 We may find the
record sufficiently clear, however, to infer the district court’s reasoning. 45
Here, the district court’s order first concluded that Thompson failed to state
a claim, and that the claim was frivolous. The district court did not abuse its
discretion in denying the motion to appoint counsel given the finding that
Thompson’s claim was not plausible.
Federal Rule of Civil Procedure 15(a) “evinces a bias in favor of
granting leave to amend.”46 But a “district court properly exercises its
discretion under Rule 15(a)(2) when it denies leave to amend for a substantial
reason, such as undue delay, repeated failures to cure deficiencies, undue
prejudice, or futility.”47 The district court did not abuse its discretion here,
denying the motion to amend because it dismissed Thompson’s existing
claims as frivolous, the addition of new claims would cause undue delay and
prejudice to the existing defendants, and the additional claims arose from
conditions at a different prison unit.
Thompson additionally moved to strike the Martinez report as
misrepresenting his allegations and omitting relevant facts. A “motion to
strike should be granted only when the pleading to be stricken has no possible
_____________________
43
Id. (quoting Ulmer,
691 F.2d at 212).
44
Jackson v. Dallas Police Dep’t, 811 F.2d 260, 262 (5th Cir. 1986).
45
Id.
46
Mayeaux v. Louisiana Health Serv. & Indem. Co., 376 F.3d 420, 425 (5th Cir.
2004) (quoting Stripling v. Jordan Prod. Co., LLC,
234 F.3d 863, 872 (5th Cir. 2000)).
47
U.S. ex rel. Spicer v. Westbrook, 751 F.3d 354, 367 (5th Cir. 2014) (citation
omitted).
12
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relation to the controversy.”48 This circuit’s precedent authorizing the use
of Martinez reports supports their relevance to this case. The Martinez report
also does not displace facts in Thompson’s pleadings, and factual disputes
are resolved at later litigation stages, rendering the motion to strike
misplaced. The district court did not abuse its discretion in denying the
motion.
Finally, we evaluate Thompson’s claim that the district court abused
its discretion in denying his motion to unseal the Martinez report as well as
the accompanying medical records. In exercising this discretion to seal
judicial records, “the court must balance the public’s common law right of
access against the interests favoring nondisclosure.”49 This court has stated
that “[t]he public’s right to access . . . is relevant regardless of who opposes
keeping a record under seal.”50 And “[t]he district court’s discretion to seal
the record of judicial proceedings is to be exercised charily.”51 We have
previously found abuse of discretion where district courts failed to weigh
these competing interests when ruling on a motion to seal.52 Here, Texas
moved to seal Thompson’s confidential medical documents filed alongside
the Martinez report, and the district court granted the motion. Thompson
then moved to unseal the documents, waiving his privacy interest “with the
competent and specific intent that his confidential information be openly
shared with the public.” The district court did not “articulate any reasons”
_____________________
48
Augustus v. Bd. of Pub. Instruction of Escambia Cnty., Fla., 306 F.2d 862, 868 (5th
Cir. 1962) (citation omitted).
49
S.E.C. v. Van Waeyenberghe, 990 F.2d 845, 848 (5th Cir. 1993) (collecting cases).
50
Holy Land Found., 624 F.3d at 690.
51
Fed. Sav. & Loan Ins. Corp. v. Blain, 808 F.2d 395, 399 (5th Cir. 1987).
52
See Van Waeyenberghe, 990 F.2d at 848–50; June Med. Servs., L.L.C. v. Phillips,
22 F.4th 512, 521 (5th Cir. 2022).
13
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to continue to seal Thompson’s medical documents after he waived his
privacy interest.53
…
We AFFIRM the district court’s dismissal with a LIMITED
REMAND instructing the district court to address Thompson’s motion to
unseal his medical records.
_____________________
53
Van Waeyenberghe, 990 F.2d at 849.
14
