Abbas Khoshdel .M.D., Llyod Aschberger, Terri Pursley, and Jamie Williams v. Charles Goosby ( 2012 )

IN THE
TENTH COURT OF APPEALS
No. 10-12-00011-CV
ABBAS KHOSHDEL, M.D.,
LLOYD ASCHBERGER, TERRI
PURSLEY, AND JAMIE WILLIAMS,
Appellants
v.
CHARLES GOOSBY,
Appellee
From the 12th District Court
Walker County, Texas
Trial Court No. 24,620
MEMORANDUM OPINION
In this interlocutory appeal, Appellants Abbas Khoshdel, M.D., Lloyd
Aschberger, P.A., Terry Pursley, and Jamie Williams1 appeal the trial court’s denial of
their motion for summary judgment on their qualified-immunity affirmative defense to
Appellee Charles Goosby’s claim for deliberate indifference to a serious medical need.
Goosby, an inmate at the Wynne Unit in Huntsville, sued Dr. Khoshdel and
1The Texas Department of Criminal Justice was also sued, but it is not a party to this interlocutory
appeal.
Aschberger, a physician’s assistant, for their role in the treatment of Goosby’s broken
arm in the Wynne Unit. He sued Pursley (an administrative associate in the Wynne
Unit infirmary) and Williams (a practice manager in the Wynne Unit infirmary) because
they did not act in getting proper medical treatment for him, and he further alleged that
Williams failed to process his medical grievance as an emergency grievance.
Appellants moved for summary judgment on their affirmative defense of
qualified immunity from suit on Goosby’s deliberate-indifference claim.
Section 1983 creates a private right of action to vindicate violations
of rights, privileges, and immunities secured by the Constitution and laws
of the United States. Rehberg v. Paulk, 132 S. Ct. 1497, 1501 (2012). A prison
official’s deliberate indifference to a substantial risk of serious harm to a
prisoner violates the Eighth Amendment’s prohibition against cruel and
unusual punishment. Farmer v. Brennan, 511 U.S. 825, 828 (1994); Estelle v.
Gamble, 429 U.S. 97, 104 (1976). Deliberate indifference is an extremely
high standard to meet. Gobert v. Caldwell, 463 F.3d 339, 346 (5th Cir. 2006).
To establish deliberate indifference, a prisoner must show that the prison
official knew of and disregarded an excessive risk to the prisoner’s health
or safety. Farmer, 511 U.S. at 837. The prisoner must show both that the
official was aware of facts from which the inference could be drawn that a
substantial risk of serious harm existed and that the official actually drew
the inference. Id.
Heirs of Del Real v. Eason, 374 S.W.3d 483, 486-87 (Tex. App.—Eastland 2012, no pet. h.).
“An official’s failure to perceive and to alleviate a risk is not an infliction of
punishment. Moreover, negligent medical treatment is not a violation of section 1983.”
Tex. Dep’t of Crim. Justice v. Thomas, 263 S.W.3d 212, 219 (Tex. App.—Houston [1st Dist.]
2007, pet. denied) (citations omitted). Evidence of inadvertent failure to provide
medical care or negligent diagnosis is insufficient to establish “unnecessary and wanton
infliction of pain” in violation of the Eighth Amendment. Cole v. Frizzell, No. 13-07-
Khoshdel v. Goosby Page 2
00092-CV, 2008 WL 4117216, at *3 (Tex. App.—Corpus Christi Aug. 14, 2008, no pet.)
(mem. op.) (citing Wilson v. Seiter, 501 U.S. 294, 297, 111 S. Ct. 2321, 115 L. Ed. 2d 271
(1991) (holding that “inadvertent failure to provide adequate medical care” fails to
establish the requisite culpable state of mind)).
“[T]he facts underlying a claim of ‘deliberate indifference’ must
clearly evince the medical need in question and the alleged official
dereliction.” Johnson v. Treen, 759 F.2d 1236, 1238 (5th Cir. 1985) (citing
Woodall v. Foti, 648 F.2d 268 (5th Cir. 1981)); County of El Paso, 180 S.W.3d
at 863 (holding that an inmate must prove that a jail official was
subjectively aware of facts from which an inference could be drawn that a
substantial risk of serious harm existed and that the jail official actually
drew such an inference). Specifically, a plaintiff must demonstrate that
prison officials “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.” Domino
v. Tex. Dep't of Criminal Justice, 239 F.3d 752, 756 (5th Cir. 2001) (quoting
Johnson, 759 F.2d at 1238); County of El Paso, 180 S.W.3d at 863. Medical
records of sick calls, examinations, diagnoses, and medications may rebut
an inmate’s allegations of deliberate indifference. Banuelos, 41 F.3d at 235
(citing Mendoza v. Lynaugh, 989 F.2d 191, 193-95 (5th Cir. 1993)); County of
El Paso, 180 S.W.3d at 868.
Davis v. Barnett, No. 02-09-00207-CV, 2010 WL 3075670, at *4 (Tex. App.—Fort Worth
Aug. 5, 2010, no pet.) (mem. op.).
Qualified or official immunity from suit is available … to government
officials sued in their individual capacities under section 1983. Harlow v.
Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727 (1982); see also City of Hempstead
v. Kmiec, 902 S.W.2d 118, 120 n.1 (Tex. App.—Houston [1st Dist.] 1995, no
writ) (noting that “the term ‘official immunity’ is confusing because
official immunity covers acts performed by a government official in the
person’s individual capacity, not in the person’s official capacity”).
Government officials performing discretionary functions have qualified
immunity from a suit for damages under section 1983 so long as the
official’s conduct does not violate clearly established constitutional or
statutory rights of which a reasonable person would be aware. Padilla v.
Mason, 169 S.W.3d 493, 502 (Tex. App.—El Paso 2005, pet. denied); Scott v.
Britton, 16 S.W.3d 173, 180 (Tex. App.—Houston [1st Dist.] 2000, no pet.).
Khoshdel v. Goosby Page 3
A legal right is “clearly established” when the “contours of the right [are]
sufficiently clear that a reasonable official would understand that what he
is doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640, 107
S. Ct. 3034, 3039 (1987).
When a governmental official asserts the affirmative defense of
qualified immunity by pleading good faith and demonstrating that his
actions were within his discretionary authority, the summary judgment
burden shifts to the plaintiff to show that the defendant’s conduct violated
clearly established statutory or constitutional rights of which a reasonable
person would have been aware. Newman v. Kock, 274 S.W.3d 697, 705
(Tex. App.—San Antonio 2008, no pet.); Thomas v. Collins, 860 S.W.2d 500,
503 (Tex. App.—Houston [1st Dist.] 1993, writ denied). The plaintiff must
show: (1) the official’s conduct violated a federally guaranteed right; (2)
the right was clearly established; and (3) the official’s conduct was
objectively unreasonable in light of the clearly established right. Thomas,
860 S.W.2d at 503. Objective reasonableness is a question of law for the
court when deciding qualified immunity in a section 1983 action. Hare v.
City of Corinth, 135 F.3d 320, 328 (5th Cir. 1998); see also Poteet v. Sullivan,
218 S.W.3d 780, 792 (Tex. App.—Fort Worth 2007, pet. denied)
(recognizing that objective reasonableness is a matter of law).
Hill v. Trinci, No. 14-10-00862-CV, 2012 WL 3016855, at *3-4 (Tex. App.—Houston [14th
Dist.] July 24, 2012, no pet. h.) (mem. op.); see also Livingston v. Taylor, No. 13-07-00690-
CV, 2009 WL 2397542, at *2-3 (Tex. App.—Corpus Christi Aug. 6, 2008, no pet.) (mem.
op.); Thomas, 263 S.W.3d at 219.
In deciding whether the medical staff was entitled to qualified
immunity, we apply a bifurcated analysis. Saucier v. Katz, 533 U.S. 194,
201, 121 S. Ct. 2151, 150 L. Ed. 2d 272 (2001)[, overruled in part by Pearson v.
Callahan, 555 U.S. 223, 129 S. Ct. 808, 172 L. Ed. 2d 565 (2009)]. First, we
determine whether the medical staff’s alleged conduct violated a
constitutional right. Id. Second, we determine whether the right was
clearly established; that is, whether it would be clear to a reasonable
official that his conduct violated that right. Id. The threshold question is
whether the facts alleged, taken in the light most favorable to the party
asserting the injury, show that the officer's conduct violated a
constitutional right. Id. If the facts do not show a constitutional violation,
the official is entitled to immunity. Id. If, on the other hand, violation of a
constitutional right is shown by the facts alleged, the next step is to
Khoshdel v. Goosby Page 4
determine whether that right was clearly established at the time of the
alleged violation. Id.
McBride v. Tex. Dep’t of Crim. Justice, No. 13-07-00130-CV, 2008 WL 3971102, at *3 (Tex.
App.—Corpus Christi Aug. 28, 2008, pet. denied) (mem. op.). Courts now have
discretion in deciding which of the two prongs of the Saucier qualified-immunity
analysis should be addressed first. Pearson, 555 U.S. at 236, 129 S.Ct. at 818.
The summary-judgment evidence consists of Goosby’s prison medical records
and grievances, the affidavit of Bobby Vincent, M.D., the Huntsville District Medical
Director for the University of Texas Medical Branch, Correctional Medical Care (UTMB-
CMC), and the affidavit of Isaac J. Saxon, Jr., the Cluster/District Practice Manager for
the Northwest District of the University of Texas Medical Branch, Correctional Medical
Care.
It is undisputed that Goosby fell in the shower and fractured his right arm (distal
radius) in the early morning hours of July 18, 2008. Within hours of the fall, Goosby
was transported by van to the East Texas Medical Center Trinity Hospital (a “free-
world” hospital), where he received an x-ray, a splint, and a recommendation that he be
given Tylenol #3 for pain. Aschberger evaluated Goosby later that day and ordered
additional x-rays, Darvocet N-100 (a narcotic pain reliever similar to Tylenol #3), Motrin
(800 mg), and continued use of the splint. Aschberger also submitted an expedited
request for a consultation with an orthopedist with UTMB-CMC in Galveston. The
evidence then reflects the following events:
 On July 21, Aschberger reevaluated Goosby, ordered a cast for four weeks, re-
ordered the pain medication, and advised Goosby to keep his appointment with
Khoshdel v. Goosby Page 5
the UTMB orthopedist. Goosby ended up missing this initial appointment
because of a norovirus outbreak at the Wynne Unit that led to a unit-wide
quarantine and lockdown. Over the next two days, Aschberger changed
Goosby’s work restriction so that he was medically unassigned to work, and
Aschberger ensured that Goosby had access to the Darvocet at the “pill
window.”
 On August 4, Goosby complained of pain, and the next day Aschberger saw him
and not only ordered the requested medication but changed Goosby’s housing
restriction to include a low-bunk restriction and ground restriction.
 On August 19, Dr. Abbas Khoshdel evaluated Goosby. Because Goosby had
missed his initial appointment, Dr. Khoshdel submitted a second request for an
expedited consultation with a UTMB orthopedist.
 On September 3, Goosby submitted an I-60 requesting that Dr. Khoshdel submit
another request for an expedited consultation with a UTMB orthopedist because
Goosby had again missed his scheduled appointment, this time because of
Hurricane Gustav, which caused the temporary closure of the UTMB facility in
Galveston.
 On September 15, Goosby submitted another I-60, again requesting that Dr.
Khoshdel submit request for an expedited consultation with a UTMB orthopedist
and referring to another storm. This reference was to Hurricane Ike, which
struck Galveston on September 13 and caused major damage to the UTMB
facility, which had been evacuated and had to close because of the damage.
 On October 3, Aschberger saw Goosby, removed the cast, and took further x-rays
to check on the arm’s healing status. He also recommended Naprosyn for pain.
 On October 9, Aschberger followed up with Goosby upon receiving the
radiology report from the October 3 x-rays and gave Goosby a 90-day medical
pass. Aschberger also submitted another expedited request for an orthopedist
consultation, noting that Goosby’s previously scheduled appointments had been
canceled because of the norovirus quarantine and the hurricanes.
 On October 16, Goosby submitted an I-60 complaining of pain and requesting
reapplication of the cast. Aschberger saw Goosby the next day, ordered and
applied a splint, and recommended continued use of Naprosyn.
 On October 23, Goosby was seen via Digital Medical Services (DMS), a means of
seeing the patient via video by staff at a remote unit, by the UTMB Galveston
orthopedics staff. He was diagnosed with a non-union of the distal right radius,
Khoshdel v. Goosby Page 6
and surgery was recommended and was to be scheduled for mid-November. Dr.
Natividad, the orthopedic surgeon, had apparently anticipated that the UTMB
hospital in Galveston would be reopened by then, but it remained officially
closed until January 2009. The closure led to a surgery backlog, and Goosby’s
surgery did not occur until February 5, 2009.
 On November 21, Goosby submitted an I-60 complaining of pain and inquiring
whether his surgery had been scheduled. He was informed that the UTMB
hospital in Galveston was not operational and was being repaired and that the
scheduling would be handled when the hospital returned to full operation.
 On December 1, Goosby filed a Step 1 Grievance complaining of the delays in
treatment and requesting that he be sent to an outside facility for treatment.
Pursley informed Goosby that the grievance was forwarded to the medical
department. Williams responded by noting Goosby’s prior treatment, the
cancelled appointments and their reasons, and that his surgery was scheduled at
that time for January 2009.
 On December 2, Goosby complained again of pain and was prescribed the anti-
inflammatory drug Mobic by Michael Dome, another physician’s assistant.
Dome also found that a referral to a “free-world” medical facility was not
necessary.
 On December 21, Goosby submitted an I-60 requesting renewal of his expiring
prescription and splint pass. Aschberger saw Goosby the next day and renewed
both items.
 On December 23, Dr. Khoshdel ordered an x-ray in preparation for Goosby’s
December 27 DMS visit with the orthopedics staff.
 On January 11, 2009, Goosby complained again of pain, and on January 14 was
prescribed Nortiptyline.
 On February 5, 2009, Goosby underwent open reduction internal fixation
surgery.
In his affidavit, Dr. Vincent states that UTMB-CMC is contracted to provide
health care to TDCJ offenders (inmates) and that CMC Scheduling in Galveston makes
all specialty (such as orthopedics) appointments and surgical scheduling. No unit
physician, physician’s assistant, practice manager, or administrative assistant has the
Khoshdel v. Goosby Page 7
ability to schedule or prioritize specialty appointments or surgeries. Dr. Vincent further
states that, because Goosby’s arm was either in a cast or a splint, he did not have an
acute medical condition that would have qualified him to be sent to a “free-world”
hospital.
In their first issue, Appellants assert that Goosby has not established deliberate
indifference to a serious medical need. The gist of Goosby’s deliberate-indifference
claim against Appellants is that they delayed surgery and that they (including Williams
and Pursley)2 failed to send him to a “free-world” hospital for surgery during the time
when he could not be surgically treated at UTMB Galveston.
Indulging all reasonable inferences in favor of Goosby and taking all evidence
favorable to him as true, we conclude that Appellants met their burden of showing that
there is no genuine issue of material fact and that they are entitled to judgment as a
matter of law on the issue of qualified immunity. The summary judgment evidence
does not indicate that Appellants were deliberately indifferent to Goosby’s medical
needs.
A delay in medical care violates the Eight Amendment only if it is due to
deliberate indifference and the delay results in substantial harm. Mendoza v. Linaugh,
989 F.2d 191, 195 (5th Cir. 1993); see also Smith v. Harris, 401 Fed. Appx. 952, 953 (5th Cir.
2
In his brief, Goosby asserts that Williams and Pursley had the authority to send him to a “free-world”
facility. We assume without deciding that they did, but we also hold that, in their administrative roles,
including their processing of Goosby’s grievance, Goosby has not demonstrated deliberate indifference to
his medical needs in violation of his constitutional rights. See Criollo v. Milton, 414 Fed. Appx. 719, 721
(5th Cir. 2011) (affirming dismissal of deliberate-indifference claim against prison’s practice manager and
program administrator because their role in grievance process was no role in inmate’s medical treatment);
see also Marquez v. Woody, 440 Fed. Appx. 318, 322 (5th Cir. 2011) (affirming summary judgment on
deliberate-indifference claim against prison’s practice manager, who had no role in providing medical
care to inmate).
Khoshdel v. Goosby Page 8
2010). As for the missed and delayed appointments and the delayed surgery, the record
is plain that Appellants had no control over scheduling with UTMB-CMC, and Goosby
has not shown deliberate indifference for that reason. Goosby also cannot show
deliberate indifference for the delayed surgery because the record shows that delays
were caused by a virus quarantine, two hurricanes, and the closure of the UTMB
Galveston hospital for months because of the damage caused by Hurricane Ike.
Furthermore, “the plaintiff must show that the officials ‘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.’”
Domino v. Tex. Dep’t of Crim. Justice, 239 F.3d 752, 756 (5th Cir. 2001). The evidence in
this case plainly shows that Goosby consistently received medical care (x-rays, a cast
and splints, and medication) while he was waiting for surgery. See Fails v. DeShields,
349 Fed. Appx. 973, 976 (5th Cir. 2009) (“Deliberate indifference is especially hard to
show when the inmate was provided with ongoing medical treatment.”).
As for Goosby’s primary complaint that Appellants should have sent him to a
“free-world” hospital for surgery when he was unable to have surgery at UTMB
Galveston, the only summary judgment evidence is Dr. Vincent’s affidavit testimony
that, because Goosby’s arm was either in a cast or a splint, he did not have an acute
medical condition that would have qualified him to be sent to a “free-world” hospital.
Goosby’s disagreement with this medical judgment cannot establish deliberate
indifference. “An inmate’s disagreement with the kind of medical treatment that he has
received is insufficient as a matter of law to state an Eighth Amendment violation.”
Khoshdel v. Goosby Page 9
County of El Paso v. Dorado, 180 S.W.3d 854, 868 (Tex. App.—El Paso 2005, pet. denied)
(citing Norton v. Dimazana, 122 F.3d 286, 291 (5th Cir. 1997), and Young v. Gray, 560 F.2d
201, 201 (5th Cir. 1977)); see Lagaite v. Uy, 347 S.W.3d 890, 892 (Tex. App.—Amarillo
2011, no pet.) (“While it is true that inmates are entitled to medical care, they are not
entitled to the type of care they choose.”) (citations omitted).
The summary judgment evidence does not indicate that Appellants knew of and
disregarded an excessive risk to Goosby’s health or safety. Therefore, Goosby failed to
demonstrate deliberate indifference to his medical needs in violation of his
constitutional rights. Having failed to find such a violation, our analysis is complete.
See McBride, 2008 WL 3971102, at *4 (citing Saucier, 533 U.S. at 201, 121 S.Ct. at 2156).
Appellants are entitled to qualified immunity from suit on Goosby’s claims.
Appellants’ first issue is sustained, and we reverse the trial court’s denial of their
motion for summary judgment. We render judgment that Goosby take nothing on his
section 1983 claim against Appellants because they have qualified immunity from suit.
We remand this case for further proceedings consistent with this opinion.
REX D. DAVIS
Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Reversed and rendered and remanded
Opinion delivered and filed November 1, 2012
[CV06]
Khoshdel v. Goosby Page 10