Cano v. Faust ( 2023 )

Case: 22-20189 Document: 00516676711 Page: 1 Date Filed: 03/14/2023
United States Court of Appeals
for the Fifth Circuit
____________ United States Court of Appeals
Fifth Circuit
No. 22-20189 FILED
Summary Calendar March 14, 2023
____________ Lyle W. Cayce
Clerk
Juan Daniel Cano,
Plaintiff—Appellant,
versus
Karen Faust; Mark Varner; Jaime Williams; Gail L.
Thompson; James Jones; Charles James; Officer Perkins,
Defendants—Appellees.
______________________________
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:19-CV-317
______________________________
Before Smith, Southwick, and Douglas, Circuit Judges.
Per Curiam:*
Juan Daniel Cano, Texas prisoner # 1705654, appeals the dismissal of
his 42 U.S.C. § 1983 action against two officials employed by the Texas
Department of Criminal Justice (TDCJ) and three officials employed by the
University of Texas Medical Branch (UTMB). Cano’s complaint stems
from his allegation that UTMB physician’s assistant Karen Faust assaulted
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-20189 Document: 00516676711 Page: 2 Date Filed: 03/14/2023
No. 22-20189
him in the course of performing a rectal exam after he complained of rectal
bleeding. Cano’s complaint alleged claims of retaliation, deliberate
indifference, failure to supervise or train, use of excessive force, and failure
to intervene. He now challenges the Federal Rule of Civil Procedure Rule
12(b)(6) dismissal of his claims against TDCJ employees James Jones and
Charles James, the Rule 12(b)(6) dismissal of his retaliation claim against
Faust, and the district court’s order granting summary judgment in favor of
UTMB employees Faust, Mark Varner, and Jaime Williams on qualified
immunity grounds. Cano does not challenge the dismissal of his claims
against UTMB employee Gail L. Thompson.
We review a dismissal for failure to state a claim pursuant to Rule
12(b)(6) de novo. Morin v. Caire, 77 F.3d 116, 120 (5th Cir. 1996). Under
that rule, a complaint must be dismissed if it fails to “set forth enough facts
to state a claim to relief that is plausible on its face.” Childers v. Iglesias, 848
F.3d 412, 413 (5th Cir. 2017) (internal quotation marks and citation omitted).
The district court correctly found that Cano failed to allege more than
a de minimis retaliatory act that would be sufficient to support a retaliation
claim against James. See Morris v. Powell, 449 F.3d 682, 684-86 (5th Cir.
2006); Brunson v. Nichols, 875 F.3d 275, 277 (5th Cir. 2017). We also agree
that he failed to plead facts showing it was plausible that Faust had the
requisite intent to retaliate against him or that the alleged adverse act would
not have occurred but for Faust’s retaliatory intent. See Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009); Woods v. Smith, 60 F.3d 1161, 1166 (5th Cir. 1995);
McDonald v. Steward, 132 F.3d 225, 231 (5th Cir. 1998). Accordingly, the
court did not err in dismissing Cano’s retaliation claims for failure to state a
claim.
Nor did it err in dismissing Cano’s claims that Jones and James were
deliberately indifferent to his serious medical needs by allegedly failing to
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No. 22-20189
provide him with medical providers capable of providing proper treatment.
Cano did not allege that Jones or James played any role in hiring medical
providers or in determining who would treat him, and Cano’s allegations
reflect a mere disagreement with the medical treatment he received, which
cannot form the basis of a deliberate indifference claim. See Gobert v.
Caldwell, 463 F.3d 339, 346 (5th Cir. 2006). His claim that James and Jones
failed to supervise or train their subordinates was likewise properly dismissed
because Cano failed to plead facts suggesting any connection between the
alleged failure to supervise or train and any violation of his rights. See
Goodman v. Harris Cnty., 571 F.3d 388, 395 (5th Cir. 2009).
With respect to the district court’s granting of the UTMB
defendants’ summary judgment motion, our review is de novo. See Hyatt v.
Thomas, 843 F.3d 172, 176 (5th Cir. 2016). Summary judgment is appropriate
“if the movant shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a). The doctrine of qualified immunity “alters the usual summary
judgment burden of proof” in that the plaintiff has the burden of showing
that a defendant is not entitled to qualified immunity. Valderas v. City of
Lubbock, 937 F.3d 384, 389 (5th Cir. 2019). In determining whether qualified
immunity applies, we review: (1) whether the plaintiff has alleged a violation
of a constitutional right; and (2) if so, whether the right was clearly
established at the time of the violation. Brumfield v. Hollins, 551 F.3d 322,
326 (5th Cir. 2008).
Cano’s complaint alleged that Faust used excessive force by inserting
an unknown object into his rectum three times during a rectal exam. The
summary judgment evidence submitted by the UTMB defendants reflects
that Faust performed a single-digit rectal exam on Cano because he
complained of rectal bleeding; the evidence does not support Cano’s
assertion that Faust inserted any other item into his rectum. See Carnaby v.
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City of Houston, 636 F.3d 183, 187 (5th Cir. 2011). Moreover, Cano has not
pointed to any summary judgment evidence supporting his assertion that the
rectal exam was clearly excessive or that the excessiveness was clearly
unreasonable. See Tarver v. City of Edna, 410 F.3d 745, 751 (5th Cir. 2005).
Cano has also failed to show that he had a “clearly established” right to
refuse the rectal exam at the time of the alleged violation. Brumfield, 551 F.3d
at 326; see Sama v. Hannigan, 669 F.3d 585, 593 (5th Cir. 2012). The district
court therefore did not err in granting summary judgment for Faust with
respect to Cano’s use of excessive force claim. We will not consider Cano’s
claim, raised for the first time on appeal, that Faust’s failure to obtain his
consent for the exam violated his Fourteenth Amendment due process right.
See Leverette v. Louisville Ladder Co., 183 F.3d 339, 342 (5th Cir. 1999).
We also ascertain no error in the district court’s grant of summary
judgment on Cano’s failure to intervene claim against Varner, a nurse who
was present during the rectal exam. Because Cano’s rights were not violated
during the rectal exam, Cano has failed to make the required showing that
Varner failed to prevent a violation of his rights. See Whitley v. Hanna, 726
F.3d 631, 646 (5th Cir. 2013).
Cano has also not shown that the court erred in granting summary
judgment in favor of the UTMB defendants on his deliberate indifference
claim. The summary judgment evidence belies Cano’s assertions that he was
not treated for his thyroid and digestive issues, and his allegations amount to
a disagreement with treatment, which is not actionable under the Eighth
Amendment. See Gobert, 463 F.3d at 346. Finally, the court correctly granted
summary judgment in Williams’s favor with respect to Cano’s claims of
failure to train or supervise, as he did not make the required showing of an
underlying violation of his rights that was caused by the alleged failure to train
or supervise. See Goodman, 571 F.3d at 395.
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Accordingly, the district court’s judgment is AFFIRMED.
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