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  #1  
Old 08-30-2008, 10:53 AM
H.BuNNy H.BuNNy is offline
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Question Help!! How To sue A State Facility

Hey. My Husband is locked up in a State Facility. And they whopped his ass. Had him in the infirmary for 6 days and then sentenced him to the hole for 365 days, They had pictures of his beating. And the damage they left him with. Please if someone can help me i'd appreciate it. Thanks
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Old 08-31-2008, 04:51 PM
franny5 franny5 is offline
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" my son and only son" WAS incarserated in HUtchins State Jail in Texas " Dallas area" and had been complaining about a tooth ache for several months, He paid for the tooth extraction in SEPTEMBER OF 2006 he was not taken to have the tooth pulled until late January 2007. Carl requested antibiotics but was denied. within a week my sons neck was so swollen that he was unable to eat and had difficulty breathing. finally one of the guards helped after a week of begging, He was sent to UTMB in Galveston." the doctor at the prison Carl was being transfered from did not care". as Carl arrived he was instantly given a tracheotomy he was rushed into emergency surgery at which time the doctors had to disect his neck. Carl had been cut from ear to ear and the cut had to be left open so they could flush the bacteria also his tongue is deformed now as well the wound itself was left open for weeks so to flush out the infection. he went without food and drink for almost two months. the doctor at the UTMB hospital said he should have never been in that shape. a simple regimine of antibiotics would have been all he needed to avoid this all. Carl is now deformed, unable to speak correctly. the oxigine to his brain was cut off significantly. he had to have tubes inserted into his lungs to drain the excess fluid. Carl was a nice looking man, but now he looks much older than he already is. I was told we had to inform the state if we were going to consider a suit, which was done in awithin the stated period and I do have return receipt to prove it. I also have audio cassetts where the doctors from UTMB say he was not expected to live. all this from a tooth being pulled. we need help. Carl is still in pain constantly.no prisoner anywhere at anytime should be treated like this. they dont even treat the guys in death row this badly. can you help us or tell us where else to go for help. most attorneys are scared to take on a case like this. I also have photo's of carl in the hospital" what they call the free word hospital. 2 when he recieved his diploma in January and 2 more when he was in the hospital, I also have audio cassetts of the conversations we had with the doctors here in Galveston. Carl was hospitalized for weeks before I even found out he was in critical care. according to tdcj it is there protocol to inform the family with 48 hours of a prisoner becoming critical. I found out through a letter from my son begging for help and stating he was dying, could not eatand that it was very hard to breath, when I went to look up the warrdens number to get Carl some sort of help, it stated Carl had been transfered to Galveston Hosital. there excuse was they had no was of contacting me, but just a few weeks before they sent me the invite for Carl's graduation. why didn't they want me to know he was in the hospital. my phone number was listed and at the least they could have sent an officer to my door to tell me of my sons condition.
I have more information, almost 700 pages of medical records and other stuff. please help us, or tell us someone that isn't scared to file a suit on the state. i have photo;s and audio tapes. and there are numberous witness to the server condition my son was in. Do you have any idea what it feels like when you get a letter from you only son saying MOMMA please help me I'm dying and no one will help me.they even had the gaul to transport a suffacating man via Van from Dallas to Galveston. From what i understood it took 8 hours. I still have dreams about it. they were letting my son die a slow, painful and horrific death. if it were not for the doctor at UTMB my son would be dead. and I still dont undderstand why they NEVER informed me of my sons condition. I personally fell they didn't want me to know or just didn't care that a mother has the right to know the welfare of her child. We have loked for an attorney for over a year now and you must file the suit within a 2 year time, NO attorney's will Take the case because in Texas an inmate cannot file suit on the state. So my son has been unable to get help and went through all this for no reason at all. So if anyone knows an attorney that will file suit on the state I would love to find one too.
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Old 09-01-2008, 11:31 AM
Paralegal USA Paralegal USA is offline
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How to deal with denial of adequate medical care, beatings of inmates, and other inmate abuses, has been addressed in a number of other threads. Nonetheless, I’ll take the time to explain it here once again.

42 U.S.C. sec. 1983 specifically provides in pertinent part: “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress … .” It is under this statute that most inmate suits against prison officials are best commenced.

Under what is commonly referred to as “a 1983 action,” inmates can sue prison officials for a wide array of things, including but not limited to: inadequate medical care; assaults by staff; assaults by other inmates (when prison officials disregarded their duty to protect the inmate victim); excessive use of force; arbitrary use of chemical agents (e.g., pepper gas); fabricated misbehavior reports resulting in prolonged solitary confinement and/or loss of privileges; preventing or hindering access to the courts; interference with religious practice; and much more. In sum, unlawful denial any rights conveyed by the Constitution and not specifically forfeited by virtue of conviction and imprisonment, are actionable under sec. 1983.

Pursuant to the Prison Litigation Reform Act of 1996 (“PLRA”), an aggrieved inmate cannot, however, file suit in a federal district court until after he or she has first exhausted all available administrative remedies. In most prison systems that involves the filing of facility grievances and the taking of appeals from their denials. The only exception to that rule, created by decisional law, is when the inmate can show that pursuing administrative remedies would prove to be an exercise of futility.

Following exhaustion of available administrative remedies resulting in no curative action taken, an aggrieved inmate may then file his or her sec. 1983 complaint in the appropriate federal district court. At the same time he/she must also file a summons for each named defendant, an extra copy of the complaint for each defendant, U.S. Marshal Forms for each defendant, and a civil cover sheet. Inmates seeking In Forma Pauperis status (permission to file as a poor person), must also file a statement from the institution financial steward showing the total deposits to his or her inmate account over the past six months, and must remit 10% of the total filing fee at the time of filing, together with a motion to proceed as a poor person. Inmates not seeking In Forma Pauperis status must remit the full filing fee with their initial complaint (approximately $400.00 total).

One all requisite papers are filed, a district court judge will review the complaint to determine whether it alleges a cause or causes of action upon which relief can be granted. If the judge concludes it does not, the action will be summarily dismissed, in which case the inmate may then appeal that decision to the U.S. Circuit Court of Appeals. In cases where the district court concludes a cause or causes of action have been pled for which relief can be granted, it will direct service of the summons and complaint upon the named defendants and give them a set period of time within which to file their answer. Without fail, the defendants will then move for summary dismissal, oftentimes upon qualified immunity grounds. The inmate litigant then has the opportunity to file a reply and cross-move for summary judgment.

When the district court directs that the action proceed forward upon one or more of the causes of action, the case will proceed to discovery, whereupon the inmate plaintiff may then request and secure from the court clerk subpoenas directing disclosure by prison officials and/or others of documents he/she believes material and supporting his/her allegations. In many cases the court will also order evidentiary hearings before scheduling for trial.

A federal district court will not assign an attorney to assist an inmate with the drafting and filing of his or her initial complaint. Nor will an attorney be appointed for the purpose of opposing the defendants’ motion to dismiss. An attorney will not be appointed unless and until such time as the court might order evidentiary hearings. And similarly problematic for aggrieved inmates and their free citizen loved ones is that it is very difficult to find a private attorney willing to take on a contingency basis a federal civil rights action involving prison related issues. These things being, the inmate unfamiliar with federal civil rights and constitutional law is at a severe disadvantage from the very outset, unless he can locate a knowledgeable inmate law clerk or paralegal to assist with the drafting of his or her complaint and other pleadings. Parenthetically, while there are some inmate law clerks quite knowledgeable and adept in these types of actions, they are indeed far and few between.

Many, many inmates have prevailed against their prison official abusers in 1983 actions. The degree of injury suffered weighs heavily on the settlement offered or the damages award following trial. But if properly pled and litigated, the compensation can be significant. Over the years inmates have been awarded anywhere from nominal damages in the amount of $1.00, to millions of dollars. Again, central to money damage settlements or judgments is the degree of injury suffered (not necessarily “physical” injury).

Many inmates are subjected to abuses entitling them to monetary compensation and other things. But few have the knowledge and ability necessary to prevail before a court of law. As I have always done, I therefore urge the loved ones of abused inmates to consult a knowledgeable legal professional for case assessment, advice, and possible assistance.
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  #4  
Old 09-01-2008, 11:53 AM
Paralegal USA Paralegal USA is offline
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Quote:
Originally Posted by franny5 View Post
" NO attorney's will Take the case because in Texas an inmate cannot file suit on the state.
Not true. A TX state inmate can certainly sue in federal court for medical malpractice/depraved indifference to medical needs. A very recent case (unpublished opinion) involving a similar fact pattern follows. As you will see, the inmate prevailed against the treating Texas prison system treating physician.

***********************
MICHAEL v. SABATER, 05-10890 (5th Cir. 7-29-2008)

MICHAEL BIAS Plaintiff-Appellee v. LESLIE WOODS, et. al, Defendants

NENITA SABATER Defendant-Appellant.

No. 05-10890.

United States Court of Appeals, Fifth Circuit.

July 29, 2008.


[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]

Appeal from the United States District Court for the Northern
District of Texas USDC No. 7:99-CV-33.

Before DeMOSS, DENNIS, and OWEN, Circuit Judges.

DeMOSS, Circuit Judge:[fn*]


[fn*] 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.


Defendant-Appellant Nenita Sabater, M.D. appeals the district
court's final judgment holding that (1) she is not entitled to
qualified immunity with respect to the 42 U.S.C. § 1983
claim brought against her by Plaintiff-Appellee
Page 2
Michael Bias for violations of his Eighth Amendment right to be
free from cruel and unusual punishment, and (2) she is liable
under § 1983 for Bias's injuries. We affirm.

I. Background Facts

Bias arrived at the Texas Department of Criminal Justice's
(TDCJ) Allred Unit on May 1, 1997, with a history of at least
one suicide attempt. Dr. Sabater was his treating psychiatrist.
She diagnosed Bias with clinical depression and prescribed him
anti-depressant and anti-psychotic medications. During his stay
at the Allred Unit, Bias repeatedly told Dr. Sabater and her
staff that he was having suicidal thoughts. Bias specifically
stated that he had a "suicide plan," although he indicated to
Dr. Sabater's staff that he would not follow through with his
plan for at least one month. On May 20, 1997, Bias attempted
suicide by slashing his left wrist and taking an overdose of
seven different medications that he had collected from daily
pill call and saved since his arrival in the Unit.[fn1]

Following his suicide attempt, officers placed Bias in a
suicide-watch cell with no clothing and nothing but a "suicide
blanket." Clinic notes from May 20, 1997, state that Bias was
"sitting on the side of the bed" and was "awake, alert, and
co-operative." In the early morning hours of May 21, 2007, Bias
was "lethargic" but was made "easily alert" with an ammonia
inhalant. The clinic notes go on to state that, at this time,
Bias "denie[d] taking meds other than his own [and] states he
takes meds only as prescribed." On May 21, 1997, approximately
twelve to sixteen hours after Bias's suicide attempt, Dr.
Sabater first became aware of Bias's unconscious or
near-unconscious condition. She concluded that he was
"suffer[ing] from severe depression and that he was withdrawn
and did not want to talk." That same day, she recommended that
Page 3
Bias be transferred to the Montford Unit, the TDCJ's psychiatric
facility. However, for reasons that are unclear, Bias was
actually transported 150 miles from the Allred Unit to the
Robertson Unit.[fn2]

A videotape recorded on May 22, 1997, showed Bias being prepared
for transport from the Allred Unit. The video is approximately
twenty minutes long and initially shows Bias lying on his back,
apparently naked, on a "suicide blanket" on the floor. The video
shows several correctional officers attempting to rouse Bias to
prepare him for transport by telling him to "wake up" and "open
[his] eyes." Bias's only responses were to tilt his head to the
side and raise his head slightly. Officers attempted to awaken
Bias with an ammonia capsule, which resulted in only a groan and
some slight movement. Bias appears motionless at all other times
throughout the duration of the tape. An officer can be heard
asking whether they should "get a nurse to make sure nothing
[was] wrong with him" and stating that Bias "can't even hold
himself up." Because Bias was unconscious, the officers had to
lift Bias into a sitting position in order to dress him and
place leg irons and handcuffs on him, a process which took
approximately ten minutes. Dr. Sabater appears intermittently on
the videotape to supervise Bias's preparation for transport.
Bias's vital signs were checked during this time and were normal.

Officers placed Bias in the transport van, on his back, in a
confined space on the floor that appeared to be just smaller
than Bias's shoulder width. During the transfer, Bias "did not
awaken or move." Curtis Cooper, associate clinical
Page 4
psychologist at Allred, told investigators that the ammonia
capsule "was of little or no help" in awakening Bias immediately
prior to his placement in the van. Linda Barnaby, nurse at the
Robertson Unit, stated that upon arrival, Bias was "not
responsive to verbal stimuli nor painful stimuli," such as a
chest rub or eye lash flick. Almost immediately after Bias's
arrival to the Robertson Unit, he was transported to Hendrick
Medical Center for an apparent drug overdose. The Trauma Center
Note stated that Bias had been "[un]responsive . . . for at
least the last 24 hours" and was in a "comatose state." Bias
showed signs of multi-system organ failure, but gradually became
alert after several days in intensive care.

As a result of being transported in an unconscious or nearly
unconscious state on the floor of a van without being moved,
Bias suffered a compression injury resulting in necrosis and
infection in his right hip, buttocks and thigh. Medical records
indicated that he suffered a wound approximately ten inches in
diameter that required skin-graft surgery. According to Bias,
the injury left "permanent disfigurement." Bias testified that
he lost the skin from his right leg up to his hip, that there
remained a hole in his right gluteus maximus, that his right
buttock is gone, and that he cannot sit or stand too long
because of the nerve damage and muscle loss. The district court
viewed Bias's right hip, thigh, and leg and confirmed that he
had suffered substantial physical injury. Dr. Sabater does not
dispute that Bias's transportation in an unconscious state
caused his injuries.

II. Procedural History

In 1999, Bias filed pro se a lawsuit pursuant to
42 U.S.C. § 1983 against three wardens (Leslie Woods, Earl Fox, and Ray
Castro), Dr. Sabater, and several unknown officers, all of whom
worked in the Allred Unit of the TDCJ. Bias asserted that the
defendants had acted with deliberate indifference to his
Page 5
serious medical needs in violation of his Eighth Amendment right
to be free from cruel and unusual punishment. See
U.S. CONST. amend. VIII.

The district court dismissed Bias's suit as frivolous, but did
so without prejudice. In January 2000, this Court affirmed the
dismissal of the claims against the wardens, vacated the
judgment with respect to the dismissal of the claims against Dr.
Sabater and the unknown defendants, and remanded the case for
further proceedings. See Bias v. Woods, No. 99-10709,
2000 WL 122419 (5th Cir. Jan. 31, 2000). After further
proceedings irrelevant to this appeal, the district court
dismissed Bias's claims against all defendants except Dr. Sabater.

Dr. Sabater filed a motion for summary judgment, arguing that
Bias had failed to exhaust administrative remedies, that she was
entitled to qualified immunity, and that Bias had failed to
state a constitutional violation. The district court denied Dr.
Sabater's motion on July 8, 2002. That same day, the court held
a bench trial on Bias's claim against Dr. Sabater. In an order
dated July 26, 2002, the district court determined that Dr.
Sabater was liable for Bias's injuries, and Dr. Sabater
appealed. In October 2003, this Court dismissed Dr. Sabater's
interlocutory appeal for lack of jurisdiction, concluding that
the district court's judgment was not final because damages had
not yet been determined. See Bias v. Woods, 78 F.
App'x 951 (5th Cir. 2003).

On remand, the district court held a hearing on damages and
awarded Bias: $103,800.00 in compensatory damages for physical
pain and suffering, mental anguish, and emotional distress;
attorney's fees; costs; and interest. Dr. Sabater timely
appealed.

III. Analysis

On appeal, Dr. Sabater argues that the district court erred in
denying qualified immunity because: (1) Bias failed to allege a
violation of a clearly established constitutional right; (2) Dr.
Sabater's conduct was objectively
Page 6
reasonable in light of the clearly established law;[fn3] and (3)
Bias failed to state or prove a claim other than negligence.

We review a district court's conclusions of law de novo. See
Water Craft Mgmt. LLC v. Mercury Marine, 457 F.3d 484, 488
(5th Cir. 2006). We may not set aside a district court's factual
findings unless it is clearly erroneous. See Crawford v.
Falcon Drilling Co., Inc., 131 F.3d 1120, 1124 (5th Cir.
1997); FED. R. CIV. P. 52(a).

Government officials performing discretionary functions are
protected from civil liability under the doctrine of qualified
immunity if their conduct does not violate "clearly established
statutory or constitutional rights of which a reasonable person
would have known." See McClendon v. City of Columbia,
305 F.3d 314, 322 (5th Cir. 2002) (citing Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982)). Federal courts apply
a two-step analysis to qualified immunity claims. See
Saucier v. Katz, 533 U.S. 194, 201 (2001). First, "[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?" Scott v. Harris, 127 S.Ct. 1769,
1774 (2007) (quoting Saucier, 533 U.S. at 201). If the
answer is yes, the court inquires whether the officer's conduct
was objectively reasonable in light of the law that was "clearly
established" at the time of the alleged violation. Goodson
v. City of Corpus Christi, 202 F.3d 730, 736 (5th Cir. 2000).

Bias argues that Dr. Sabater violated his constitutional right
to be free from cruel and unusual punishment. See
U.S. CONST. amend. VIII. The Cruel and Unusual Punishment Clause
allows an inmate to obtain relief after being
Page 7
denied medical care if he proves that there was a "deliberate
indifference to [his] serious medical needs." Banuelos v.
McFarland, 41 F.3d 232, 235 (5th Cir. 1995) (quoting
Estelle v. Gamble, 429 U.S. 97, 104 (1976)). Deliberate
indifference requires a showing that Dr. Sabater (1) was "aware
of facts from which an inference of excessive risk to the
prisoner's health or safety could be drawn," and (2) that she
"actually drew an inference that such potential for harm
existed." Herman v. Holiday, 238 F.3d 660, 664 (5th
Cir. 2001). Such a showing requires evidence 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 wonton disregard for any
serious medical needs." Domino v. Texas Dep't of Criminal
Justice, 239 F.3d 752, 756 (5th Cir. 2001) (quoting
Estelle, 429 U.S. at 107). A prisoner's disagreement
with his medical treatment is not actionable under § 1983
absent exceptional circumstances. See Banuelos,
41 F.3d at 235. Under exceptional circumstances, a prison official's
knowledge of a substantial risk of harm may be inferred by the
obviousness of a substantial risk. Farmer v. Brennan,
511 U.S. 825, 842 & n. 8 (1994). "[i]t remains open to the
officials to prove that they were unaware even of an obvious
risk to inmate health or safety." Id. at 844.

After applying the facts to the relevant legal standards, the
district court made the following findings: Dr. Sabater was not
entitled to qualified immunity because "a reasonable person
would have known that her conduct in ordering the transportation
of an inmate in Bias'[s] condition to a prison unit 150 miles
away, rather than providing immediate medical attention, would
cause a significant delay, if not a complete denial, of medical
care;" Bias's medical condition on May 22, 1997, was "open and
obvious" and "an exceptional circumstance obviously requiring
immediate medical attention;" Dr. Sabater "was aware of facts
from which an inference could be drawn that a substantial risk
of serious harm existed;" Dr. Sabater "actually drew that
inference;" and "her intentional failure
Page 8
to act caused a prolonged delay in medical care and resulted in
substantial injury to Michael Bias;" and Dr. Sabater was
"deliberately indifferent" to Bias's "serious medical needs" and
her conduct resulted in his injuries.

After thoroughly reviewing the briefs and relevant portions of
the record, we find no clear error in the district court's
factual findings and affirm for essentially the same reasons
stated by the district court in its written order.

AFFIRMED.


[fn1] Although medical records indicate that Bias had seven
different medications in his body following the suicide attempt,
Dr. Sabater had only prescribed him two medications. There is
nothing in the record to explain how Bias obtained the five
additional medications.



[fn2] At least one of the district court's findings was clearly
erroneous: the court determined that Bias was transported to the
Robertson Unit "at the direction of Dr. Sabater." However, it is
undisputed that Dr. Sabater intended to have Bias sent to the
psychiatric facility at the Montford Unit. Despite Dr. Sabater's
instructions to transfer Bias to the Montford Unit, he was
actually transferred to the Robertson Unit. There is nothing in
the record to fully explain this discrepancy. However, Officer
Dalton Agnew, one of the officers in the transport van, stated
that the "paper work said they were en route to the Montford
Unit for Psych. appointments," indicating that the Robertson
Unit was a stop on the way to the Montford Unit.



[fn3] Dr. Sabater separately questions whether the relevant law
was "clearly established," but that question is part and parcel
of the objective reasonableness analysis. See Williams v.
Kaufman County, 352 F.3d 994, 1002 n. 12 (5th Cir. 2003)
("The district court, however, unnecessarily decoupled the
clearly established/objective unreasonableness test of the
Supreme Court. That is, if a right is clearly established enough
to impart fair warning to officers, then their conduct in
violating that right cannot be objectively reasonable.").

Page 9

DENNIS, Circuit Judge, specially concurring.

I fully concur in the correct and well crafted majority
opinion and write further only to emphasize certain facts and
legal principles that additionally support its conclusion.

Having reviewed the record in this case, including the
much-discussed videotape, I cannot conclude that the district
court clearly erred in finding that Bias's helpless, unconscious
condition obviously required either immediate treatment or
continuing medical attendance, that Dr. Sabater knew of and
understood this condition, and that Dr. Sabater deliberately
placed Bias in a situation in which she knew that he would
receive no medical (or even medical technician) attention for
several hours by approving his transportation, unconscious and
horizontally crammed on the floor of a van not equipped for
non-ambulatory patient use. The record also confirms that when
Bias arrived at the Robertson unit, after several hours of
unconsciously enduring his dangerously inadequate transportation
conditions, he was immediately sent to a hospital emergency care
facility, where he was not only immediately diagnosed as
suffering from a drug overdose but also found to suffer from
necrosis as a result of being cramped in the van unconscious and
on his back and side for several hours. Finally, the record
shows that this transport-induced injury led to Bias's need for
multiple surgeries and to the loss of his right buttocks,
inter alia. Thus, my study of the record, including
Bias's compiled medical records, has confirmed my agreement that
we should affirm the district court's judgment because we cannot
say that it is clearly erroneous.

To prove "deliberate indifference" Bias needed to demonstrate
two elements: (1) that Dr. Sabater was subjectively aware of a
substantial risk to Bias's health, and (2) that Dr. Sabater
disregarded that risk. See Farmer v. Brennan,
511 U.S. 825, 842 (1994) (holding that an "Eighth Amendment claimant"
need only show "that the official acted or failed to act despite
his
Page 10
knowledge of a substantial risk of serious harm"); see also
Gobert v. Caldwell, 463 F.3d 339, 348-49 & n. 29 (5th
Cir. 2006). Since the first element inquires only into Dr.
Sabater's subjective knowledge of a substantial risk, Bias was
able to meet the prong without supplying expert testimony.
See Gobert, 463 F.3d at 348 n. 29 ("As we must focus on
[the doctor's] subjective knowledge, expert testimony cannot
create a question of fact as to what [the doctor] actually
knew."). In fact, because "whether a prison official had the
requisite knowledge of a substantial risk is a question of fact
subject to demonstration in the usual ways, including inference
from circumstantial evidence," Farmer, at 842, Bias
satisfied this element and allowed the factfinder to infer Dr.
Sabater's subjective knowledge simply by demonstrating the
obviousness of his condition and its risks. See Harris v.
Hegmann, 198 F.3d 153, 159 (5th Cir. 1999). Similarly, Bias
need not have provided expert testimony to establish the second
element of his deliberate indifference claim; he met the second
prong by presenting evidence allowing the trier of the facts to
infer that Dr. Sabater, by acting or failing to act, disregarded
a known substantial risk. See Gobert 463 F.3d at 349;
see also Farmer, 511 U.S. at 842.

Here Bias alleged and introduced evidence of facts sufficient to
prove these elements of deliberate indifference, and the
district court, acting as fact-finder, found the evidence, as
discussed above, sufficient to rule in Bias's favor.

We may not set aside a district court's factual finding unless
it is clearly erroneous, see Crawford v. Falcon Drilling
Co., Inc. 131 F.3d 1120, 1124 (5th Cir. 1997) (citing
Fed.R.Civ.P. 52(a)), and based on my review of the record, I see
no clear error here. The district court could have reasonably
and correctly inferred from the record and video that Bias was
in need of medical attention. The video documents twenty
minutes of Bias's completely unconscious, limp body, which could
not easily have been malingering. Given that Bias had attempted
suicide and had been slipping in and out of consciousness for
nearly
Page 11
three days, at the very least, Bias's obvious, unconscious state
required monitoring, and from the conspicuousness of this
condition, the district court could reasonably have inferred
that Dr. Sabater subjectively appreciated as much.[fn1]

Further, the record shows no clear error in the district court's
determination that Dr. Sabater's actions amounted to a denial or
delay of medical care to Bias. By approving Bias's transport in
an ordinary van, Dr. Sabater terminated Bias's access to any
medical treatment or attention; despite his condition, she
isolated him in a cramped space for multiple hours. It is well
within reason for the district court to have concluded that such
constitutes a disregard for the substantial risks to Bias's
health. This conclusion is bolstered by the fact that when Bias
finally arrived at the Hendricks Medical Center and received
proper treatment, he was immediately diagnosed as suffering from
a drug overdose, as well as necrosis and other physical injuries
he did not have when Dr. Sabater had him crammed into the van.
So while Bias's condition may not necessarily have required a
doctor constantly present, his comatose state did merit
attention by some physician or medical technician, and Dr.
Sabater's order not only denied him such attention but also
caused him further injury as a result of his three-hour
transportation ordeal.
Page 12

Thus, I concur in finding that we should affirm the district
court's judgment, and I cannot agree that expert testimony was
necessary to prove this particular case. As discussed above,
Farmer, 511 U.S. at 842, and Gobert,
463 F.3d at 348 & n. 29, show that no expert testimony is needed to
establish deliberate indifference in a case such as this because
expert testimony cannot reveal Dr. Sabater's subjective
knowledge and is unnecessary to establish that Dr. Sabater's
actions amount to a disregard for Bias's condition. Also,
Estelle v. Gamble, 429 U.S. 97, 107 (1976), the case
cited by the dissent in support of the proposition that Bias's
claim must be bolstered by expert testimony, appears to hold
only that expert testimony is preferred as a general rule, and I
find that Bias's obvious and emergent condition distinguishes
the present case from Estelle.[fn2]

In sum, I find that the district court's judgment was not
clearly erroneous. The trial judge heard testimony, watched the
videotape, and made the credibility evaluations. The record
shows that this determination was not clearly erroneous, so we
are bound to affirm.


[fn1] Dr. Sabater never testified at trial that she believed
Bias to be "faking," but the record contains statements from
prison officials involved in Bias's preparation for transport
that report Dr. Sabater's making such "faking" accusations.
See ROA vol. 2 p. 285; vol 6 p. 9; vol 6 p. 72-74. In
light of the video, though, such a "faking" diagnosis is highly
implausible. Thus, record evidence would allow the district
court to discredit any assertion that Bias was merely faking and
to conclude that Bias's obviously serious condition was known to
Dr. Sabater.

Moreover, further record evidence also supports the conclusion
that the seriousness of Bias's condition was obvious; for
example, each doctor to examine Bias after his multiple-hour
transport noted the seriousness of his condition. See,
e.g., ROA vol. 2 p. 289-90; ROA vol. 1 p. 178-79. In fact,
Dr. Jackson, who examined Bias after he was rushed from the
Robertson unit to Hendrick Medical Center, observed that he
suspected, correctly, that Bias had been hoarding medications
and that his condition was caused by an overdose. See
ROA vol. 2 p. 289-90.



[fn2] In Estelle v. Gamble, 429 U.S. 97, 107 (1976),
the plaintiff complained of "lack of diagnosis and inadequate
treatment of his back injury," specifically contending that his
doctors should have x-rayed his back. Id. Though the
plaintiff's medical condition in Estelle may have been
quite painful, id. at 99-100, it was not emergent or
life threatening, and the Plaintiff received continuous
treatment over a three-month period. Id. at 107.

Unlike that case, Bias's comatose or near-comatose condition
obviously evidenced a need for immediate attention or
monitoring, but Dr. Sabater's orders isolated him from any such
attention for a critical period of hours. In fact, had Dr.
Sabater's orders been followed exactly, Bias would have been
without medical attention for even longer. Dr. Sabater ordered
and approved Bias's transport from the Allred Unit, near Wichita
Falls, Texas, to the Montford Unit, near Lubbock, Texas; the
distance between these two locations is roughly 200 miles. Bias
was actually transported only roughly 150 miles from the Allred
Unit to the Robertson Unit in Abilene, Texas.

Page 13

PRISCILLA R. OWEN, Circuit Judge, dissenting.

I respectfully dissent because there is absolutely no
evidence that Dr. Sabater was negligent in her diagnosis and
treatment of Michael Bias, much less evidence that Sabater was
deliberately indifferent to a substantial risk of serious harm
to Bias.[fn1] This is not a case in which we are evaluating a
plaintiff's Complaint to see if it withstands a motion to
dismiss. There has been a trial on the merits, and the district
court found Sabater liable based on the testimony of Bias, who
is a layman, and a 20-minute videotape, from which the district
court concluded that Bias's condition "immediately prior to his
transport out of the Allred Unit, was open and obvious." There
was no expert testimony or expert opinion that Bias's condition
was such that a reasonable health-care provider would have
recognized that transporting Bias in a van to a psychiatric unit
in another prison facility presented a risk of serious harm.

I do not take the position that expert testimony is required in
every case in which it is alleged that a physician was
deliberately indifferent to a patient's condition. But here, Dr.
Sabater examined Bias and monitored him. At least two other
health-care professionals were present during that assessment
and monitoring. Sabater may have misdiagnosed Bias's condition,
although there is no evidence that she did or that if she did,
it amounted even to negligence. But misdiagnosis is not
withholding treatment nor is it treatment that is consciously
indifferent to a substantial risk of serious harm. Whether it
would have been obvious to a reasonable physician that
transporting Bias to another unit in a van presented a
substantial risk of serious harm requires an expert's analysis.
Bias, a layman and the only witness he called at trial, cannot
provide that analysis,
Page 14
nor can federal judges, learned though they may be. The record
in this case simply does not support a finding of deliberate
indifference.

The district court's opinion reflects that Dr. Sabater's
liability was predicated on three conclusions. The first was,
"[t]he Court finds that a reasonable person would have known
that her conduct in ordering the transportation of an inmate in
Bias' condition to a prison unit 150 miles away, rather than
providing immediate medical attention, would cause a significant
delay, if not a complete denial, of medical care." The record is
devoid of any evidence that Bias required immediate medical
attention or that transporting him 150 miles would subject him
to a substantial risk of injury. Only a health care expert could
make such an assessment in this case, and there was no expert
testimony or opinion from any source that was critical of Dr.
Sabater's care of Bias.

The facts are essentially undisputed. Bias attempted suicide
sometime during the evening of May 20 by slicing his wrist and
ingesting prescription drugs he had surreptitiously saved over a
period of almost a month. The district court did not find that
Sabater had any responsibility for Bias's possession or
ingestion of those drugs. Nor was Sabater on duty or present at
the prison on May 20 when the suicide attempt occurred. Other
medical personnel attended Bias after his attempt to take his
own life, and when asked if he had taken any medication, he
repeatedly replied that he had only taken what Sabater had
prescribed and in the amounts prescribed. Bias's drug ingestion
was not known to any prison official or attendee, including Dr.
Sabater, until long after Bias had left the Allred facility.

Sabater saw Bias at approximately noon on the day after his
suicide attempt. She examined him, concluded that he remained
clinically depressed, and requested TDCJ to transfer Bias by its
next available transport to the Montford Unit, where TDCJ's
psychiatric unit was located.
Page 15

The TDCJ van did not arrive until about 7:30 the next morning,
May 22. Prison officials ordered Bias from his cell, but he did
not respond. A use-of-force team was called to remove Bias from
his cell, and the team recorded the events on videotape. The
video shows Bias lying on his back, without clothing, on a
"suicide blanket." The guards on the team ordered Bias to "wake
up" and "open [his] eyes." Bias responded by raising his head
and tilting it slightly. The guards used an ammonia inhalant, to
which Bias responded with a groan and slight movement. The
remainder of the video reflects that Bias appeared motionless
and limp as the guards dressed him, handcuffed him, and laid him
on a gurney. At least twice during the video, Dr. Sabater and a
nurse appeared and took Bias's vital signs, which were normal.
Dr. Sabater flashed a light in Bias's eyes and reported normal
reactivity. Dr. Sabater testified at trial that based on those
diagnostics and observations she concluded her original
diagnosis of clinical depression explained Bias's physical
condition. The videotape concludes with guards placing Bias in
the TDCJ van on his back in a confined space.

Josie Grubbs, a nurse present during the transfer, told Allred
investigators that "in hindsight a drug screen may have been
[of] some assistance in determining Offender Bias's condition,"
but that she had no reason to believe that an overdose caused
his condition. Curtis Cooper, an associate clinical psychologist
also present, told the investigators that Bias was unresponsive
to the ammonia inhalant and speculated his condition was due to
"waxy flexibility," which he described as the brain and body
working asynchronously. Cooper further stated that "although Dr.
Sabater could have requested an opinion of another physician,"
that was not in her nature. Nonetheless, Cooper stated "Offender
Bias's vital signs were within acceptable range and there was no
other indicator present" to suggest an overdose.
Page 16

This uncontradicted evidence does not support a finding of
deliberate indifference. Bias's complaint at trial that Sabater
should have done more does not raise a fact question, and the
Supreme Court has held that such a complaint fails to
demonstrate deliberate indifference.[fn2]

The district court seems to have based its finding of deliberate
indifference largely, if not entirely, on the videotape. The
second conclusion in the district court's opinion is that "the
Court finds that plaintiff's condition on May 22, 1997 was an
exceptional circumstance obviously requiring immediate medical
attention. A review of the videotape along with the testimony
presented at trial confirms this finding." However, the three
health-care professionals who attended Bias while he was being
prepared to be taken to the Montford Unit actually examined
Bias. His eyes and pupils were examined. His vital signs were
checked, more than once, and they were normal. None of the three
attending professionals thought at the time that transporting
Bias to the Montford Unit would place him at risk. All of this
is undisputed. A layperson cannot independently draw the
conclusion that Bias was at risk just because, in hindsight, it
is now known that Bias was injured during the transportation.

The trip to the Robinson Unit lasted approximately three hours.
Apparently, had the transport van gone directly to the Montford
Unit, the travel time would have been about forty-five minutes
longer. The district court deduced that Bias's limp condition
when he was placed in the van made a substantial risk of serious
harm obvious. But how does a limp condition allow a layman to
conclude that travel in the back of a van for three hours
creates such a risk? It is not intuitively or otherwise obvious
that lying in a prone, immobile position for three hours
presents a risk. Common experience suggests otherwise.
Page 17
There is simply nothing in the record that permits the
inferences the district court drew.

The third conclusion in the district court's opinion is similar
to the others: "The Court finds that the plaintiff's condition
on May 22, 1997, immediately prior to his transport out of the
Allred Unit, was open and obvious, that Dr. Sabater was aware
of facts from which an inference could be drawn that a
substantial risk of serious harm existed, that she actually drew
that inference and that her intentional failure to act caused a
prolonged delay in medical care and resulted in substantial
injury to Michael Bias." Here again, the nature of Bias's
condition and the risks that transporting him posed were not
matters about which a layperson has knowledge. If Dr. Sabater
had entirely turned her back on Bias and refused to undertake
any examination or treatment, this might well be a different
case. But she did not. She ordered that he be sent to another
facility for care, she continued to examine him, she monitored
him, and other health care professionals assisted her. Her
professional judgment may have been faulty, but there is no
basis for concluding she was deliberately indifferent.

The term "deliberate indifference" is not self-defining, [fn3]
but the Supreme Court frequently defines it in relation to
negligence and, in cases such as this, medical malpractice.[fn4]
The Court notes deliberate indifference "describes a state of
mind more blameworthy than negligence."[fn5]
Eighth Amendment liability for deliberate indifference requires
"`more than ordinary lack of due care for the
prisoner's interests or safety'" — i.e., more than medical
malpractice.[fn6] In cases involving medical treatment, a
prisoner's complaint that a physician was merely
Page 18
negligent in diagnosing or treating the prisoner fails to state
a claim under the Eighth Amendment.[fn7] "Medical malpractice
does not become a constitutional violation merely because the
victim is a prisoner."[fn8] The facts in this case present "a
classic example of a matter for medical judgment."[fn9] "A
medical decision not to order an X-ray, or like measures, does
not represent cruel and unusual punishment. At most it is
medical malpractice."[fn10] Sabater made the medical decision to
transfer Bias to the psychiatric unit at another prison. Without
evidence of the standard of care that obtained, a court cannot
determine that Sabater deviated from that standard, much less
that she acted with deliberate indifference in treating and
evaluating Bias. Establishing the standard of care requires
specialized knowledge and training. Lay fact-finders cannot
determine from their own observations whether a physician's
course of conduct was proper.

The concurring opinion concludes that Bias's "obvious and
emergent condition" distinguishes this case from
Estelle. What may be "obvious and emergent" to a layman
is a different question from what is obvious and emergent to a
physician. Medical personnel routinely encounter patients whose
prognosis looks extremely grave to the lay observer, but
physicians using medical diagnostics would draw a very different
conclusion. Laymen cannot judge whether transportation of a
patient in Bias's condition posed a substantial risk of serious
harm.

The concurring opinion cites this court's decision in Gobert
v. Caldwell[fn11] for the proposition that "expert
testimony cannot create a question of fact as to
Page 19
what [the doctor] knew," then reasons that Bias established the
subjective knowledge prong of deliberate indifference because
the factfinder could "infer . . . subjective knowledge" from
"the obviousness of [Bias's] condition and its risks."[fn12] Our
decision in Gobert not only fails to support this
conclusion, Gobert requires that we reverse and render
judgment for Sabater in this case.

We correctly recognized in Gobert that an inmate "must
first prove objective exposure to a substantial risk of serious
harm"[fn13] and that "the decision whether to provide additional
treatment is a classic example of a matter for medical
judgment."[fn14] We do not reach the subjective knowledge
element unless and until there is evidence of exposure to a
substantial risk of serious harm. There is no such evidence in
this case. It cannot be "inferred" by laymen. The footnote in
Gobert on which the concurring opinion relies
recognizes this.[fn15] However, the presence of a substantial
health risk was not at issue in that case because the defendant
physician acknowledged that he knew that developing a serious
infection in the inmate's leg was a "concern."[fn16] Gobert's
leg had been crushed below the knee when the garbage truck on
which he was riding as a "`hopper'" collided with another
vehicle, and he had surgery that included the
Page 20
placement of pins in his leg.[fn17] Gobert was continuously on
antibiotics for more than two months, except for seven days at
issue in the case, his wound frequently exuded puss and blood,
including areas around the pins, and there was swelling and
redness on occasion. The court therefore concluded in
Gobert that the nature of the inmate's "wound itself
posed a substantial health risk."[fn18] Within days of his
release from prison, Gobert was diagnosed with a very serious
infection of the bone in his injured leg.[fn19] The court
nevertheless held, as a matter of law on summary judgment, that
the "extremely high standard"[fn20] of deliberate indifference
had not been met[fn21] in spite of the district court's
conclusion that numerous fact issues existed regarding
deliberate indifference, including "whether [the physician]
looked at the medical records" and "whether or not other actions
should have been taken."[fn22]
Page 21

The Eleventh Circuit's decision in Campbell v.
Sikes, [fn23] cited in Gobert, noted that "[p]roof
that the defendant should have perceived the risk, but did not,
is insufficient" to prove deliberate indifference.[fn24] In this
case, we have no reliable evidence that there was a substantial
risk, much less that Sabater should have perceived or actually
recognized a substantial risk to Bias such as necrosis from
being transported in a van.

The concurring opinion concludes that "the fact that when Bias
finally arrived at the Hendricks Medical Center and received
proper treatment, he was immediately diagnosed as suffering from
a drug overdose, as well as necrosis and other physical injuries
he did not have when Dr. Sabater had him crammed into the van"
establishes "disregard for the substantial risks to Bias's
health."[fn25] None of the physicians or other health care
providers who eventually diagnosed Bias were critical of the
care that Sabater provided. They did not offer the objective
evidence necessary to establish that at the time Sabater and the
other health care professionals at the prison administered
medical care, a substantial risk of serious harm to Bias
existed. Bias did not have necrosis at that time. That condition
undisputedly developed while he was in the van. Undoubtedly,
Sabater and others failed to diagnose his drug overdose. But
there is no evidence that the misdiagnosis even amounted to
negligence. Nor is there evidence that placing Bias in a van,
rather than an ambulance, posed a substantial risk of serious
injury. A layman cannot make a determination that such a risk
existed without the aid of expert testimony.

This is not a close case, and I must say that I am mystified by
the reaction the videotape in this case has engendered.
Respectfully, I must dissent.


[fn1] See Farmer v. Brennan, 511 U.S. 825, 828 (1994)
(holding that a prison official violates the Eighth Amendment
only if she is deliberately indifferent "to a substantial risk
of serious harm to an inmate.").



[fn2] Estelle v. Gamble, 429 U.S. 97, 107 (1976).



[fn3] Farmer, 511 U.S. at 836.



[fn4] See, e.g., Estelle, 429 U.S. at 107 (1976).



[fn5] Farmer, 511 U.S. at 835 (emphasis added).



[fn6] Id. (quoting Whitley v. Albers,
475 U.S. 312, 319 (1986)).



[fn7] Estelle, 429 U.S. at 106.



[fn8] Id.



[fn9] Id. at 107.



[fn10] Id.



[fn11] 463 F.3d 339, 348 n. 29 (5th Cir. 2006).



[fn12] Ante, p. ___.



[fn13] 463 F.3d at 345.



[fn14] Id. at 346 (internal quotation marks
omitted).



[fn15] Id. at 348 n. 29 ("As we must focus on Caldwell's
[a physician's] subjective knowledge, expert testimony cannot
create a question of fact as to what Caldwell actually knew.
Campbell v. Sikes, 169 F.3d 1353, 1368 (11th Cir. 1999)
(`[S]ince the facts and circumstances of this case do not allow
an inference that Sikes not only should have perceived the risk
but also actually did perceive it, does the opinion testimony by
Plaintiff's medical experts based on those same facts and
circumstances provide the missing Farmer link? The answer is
no.'). We caution that the expert testimony is only probative of
what inferences Caldwell, himself, could have made; whether he
should have made the connection is irrelevant to this
analysis.").



[fn16] Id. at 349.



[fn17] Id. at 343-44.



[fn18] Id. at 349.



[fn19] Id. at 344.



[fn20] Id. at 346.



[fn21] Id. at 352.



[fn22] Id. at 347. The district court had ruled:

I . . . think there are just too many issues of fact
. . . [concerning] whether he looked at the medical
records; whether he should have seen [Gobert] the
amount of times he saw him; whether he was prescribing
or not prescribing. . . . I just see too many material
issues of fact dealing with what Dr. Caldwell did or
didn't do at appropriate times; whether he reviewed or
didn't review the medical records; whether or not
other actions should have been taken; whether or not
the records that were developed at the Earl K. Long
Hospital were appropriately sent and filed in his
record; whether he even should have taken efforts to
look at those records; whether x-rays should have been
done earlier and reviewed earlier . . . whether there
was probative evidence that Dr. Caldwell did perceive
the plaintiff had an infection prior to August 7,
whether or not he appropriately relied on what the
medical records were. . . .



[fn23] 169 F.3d 1353 (11th Cir. 1999).



[fn24] Id. at 1364.



[fn25] Ante, p. ___.
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Old 09-02-2008, 12:18 AM
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When you start talking patterns I start talking RICO. Every state has the state equivalent to the federal RICO act. Secs.1983 & 1985 are good to start with.
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Quote:
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When you start talking patterns I start talking RICO. Every state has the state equivalent to the federal RICO act. Secs.1983 & 1985 are good to start with.
This state(Texas) needs to be sued more often. Then maybe people will take notice of the atrocities that happen within this prison system. TDCJ is BROKEN!!
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