Beard v. Bureau of Prisons

Filing 50

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS' 26 , 28 , 29 , 42 MOTIONS FOR SUMMARY JUDGMENT: Plaintiff Beared shall take nothing on her remaining claims against defendants Elaine Chapman, Pedro Hernandez, Ronda Hunter, Bill Pendergraft, and Hernan Reyes, M.D., and such claims are DISMISSED WITH PREJUDICE. (See order for specifics.) (Ordered by Judge Terry R Means on 11/7/2013) (mdf)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
BEVERLY J. BEARD,
VS.
BUREAU OF PRISONS, et al.

§
§
§ CIVIL ACTION NO.4:11-CV-383-Y
§
§
§

OPINION AND ORDER GRANTING DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT
In this case, former FMC--Carswell inmate Beverly J. Beard has
claims remaining against individual defendants Hernan Reyes, M.D.,
clinical director; Elaine Chapman, former warden; Bill Pendergraft,
counselor;

and

Pedro

Hernandez

and

Ronda

Hunter,

health

administrators. Beard’s pleadings consist of an amended complaint
and a more definite statement filed by Beard in response to this
Court’s order. The Court previously dismissed, under authority of
28 U.S.C. §§ 1915A and 1915(e)(2)(B), other claims asserted by
Beard.1

Each of the remaining defendants has appeared in this case

by filing a motion to dismiss, along with a brief in support and an
appendix.2 The Court construed each motion as seeking summary
judgment. In response to each motion, except the motion filed by
Chapman, Beard filed a document construed as a response,3 the
defendants filed a reply, and Beard then filed a document construed

1

The Court dismissed all claims against the Bureau of Prisons, the
Department of Justice, and against individual defendants Joe Keffer, A.S. Stone,
Harley G. Lappin, and an unnamed medical director for the Bureau of Prisons.
2

Hernandez and Hunter filed a combined motion, and Warden Chapman
acknowledges that her motion seeks the same relief on the same grounds as
asserted by Bill Pendergraft.
3

In each instance, Beard’s “response’ was entitled “Motion to Continue
Claim Against . . . [each defendant’s name].” (Docket entries 34, 35, and 36).

as a sur-reply.4
By

his

motion

for

summary

judgment,

Reyes

asserts

an

entitlement to absolute immunity from Beard’s claim that he was
deliberately indifferent to her serious medical needs. Defendants
Hernandez and Hunter contend that Beard failed to exhaust her
administrative remedies such that her claims must be dismissed.
Defendants Pendergraft and Chapman also claim that Beard failed to
exhaust administrative remedies as to some claims, and claim that
they are entitled to qualified immunity on others. For the reasons
set forth below, the Court concludes that each motion for summary
judgment must be granted.
Summary-Judgment Evidence
Defendant Hernan Reyes filed an appendix in support of the
motion for summary judgment that includes the April 10, 2013
Declaration of Hernan Reyes, M.D. (pp. 3-4). An appendix filed in
support of all of the motions on the basis of failure to exhaust
administrative remedies includes the April 5, 2013 Declaration of
Maria Martinez, along with two pages of records of the Bureau of
Prisons (BOP). Beard provided an appendix with her responses, that
includes the May 25, 2013 Declaration of Beverly J. Beard (entitled
“Affidavit”), along with 15 pages of records of the BOP.

Beard

also verified her complaint and more definite statement, and thus
the

Court

will

consider

those

4

pleadings

as

summary-judgment

In each instance, Beard’s “sur-reply” was actually entitled “Reply Brief
of [each defendant’s name] to Continue Under ‘Color of Federal Law.’”

2

evidence.5 The Court has considered copies of records attached to
Beard’s

amended

complaint.6

Beard

also

submitted

photographs

subsequent to the filing of her more definite statement, alleged to
show discoloration of her skin, which the Court construed and had
filed as exhibits to the more definite statement.7
Summary-Judgment Standard
When the record establishes “that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as
a matter of law,” summary judgment is appropriate.8

“[A dispute]

is ‘genuine’ if it is real and substantial, as opposed to merely
formal, pretended, or a sham.”9

A fact is “material” if it “might

affect the outcome of the suit under governing law.”10
To demonstrate that a particular fact cannot be genuinely in
dispute, a defendant movant must (a) cite to particular parts of
materials in the record (e.g., affidavits, depositions, etc.), or
(b) show either that (1) the plaintiff cannot produce admissible
evidence to support that particular fact, or (2) if the plaintiff

5

See Nissho-Iwai American Corp. v. Kline, 845 F.2d 1300, 1306 (5th Cir.
1989)(noting that although unsworn affidavit is incompetent to raise a fact issue
precluding summary judgment, the statutory exception in 28 U.S.C. § 1746 permits
unsworn declarations to substitute for an affidavit if made “under penalty of
perjury” and verified as “true and correct.”)
6

As Beard did not number these attachment pages, the Court will refer to
them with their Electronic Case File (ECF) number assigned when the March 12,
2012 amended complaint was scanned and docketed.
7

July 16, 2012 Correspondence with attached photographs(docket 14); October
22, 2012 Opinion and Order of Partial Dismissal, at 14.
8

Fed. R. Civ. P. 56(a).

9

Bazan v. Hidalgo Cnty., 246 F.3d 481, 489 (5th Cir. 2001)(citation
omitted).
10

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

3

has cited any materials in response, show that those materials do
not establish the presence of a genuine dispute as to that fact.11
Although

the

materials,

it

Court
may

is

required

consider

other

to

consider

materials

only
in

the

the

cited

record.12

Nevertheless, Rule 56 "does not impose on the district court a duty
to sift through the record in search of evidence to support a
party's opposition to summary judgment."13

Instead, parties should

"identify specific evidence in the record, and . . . articulate the
'precise manner' in which that evidence support[s] their claim."14
In evaluating whether summary judgment is appropriate, the
Court “views the evidence in the light most favorable to the
nonmovant, drawing all reasonable inferences in the nonmovant’s
favor.”15

“After the non-movant [here, Plaintiff] has been given

the opportunity to raise a

genuine factual [dispute], if no

reasonable juror could find for the non-movant, summary judgment
will be granted."16
Facts
The relevant facts are taken from Beard’s pleadings. Beard
arrived at FMC--Carswell, a medical facility for female prisoners

11

Fed. R. Civ. P. 56(c)(1).

12

See Fed. R. Civ. P. 56(c)(3).

13

Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915-16 & n.7 (5th Cir.),
cert. denied, 506 U.S. 825 (1992).
14

Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994).

15

Sanders-Burns v. City of Plano, 594 F.3d 366, 380 (5th Cir. 2010)
(citation omitted)(internal quotation marks omitted).
16

Byers v. Dallas Morning News, Inc., 209 F.3d 419, 424
2000)(citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)).

4

(5th

Cir.

operated by the Bureau of Prisons (BOP), in July 2009. (Amend.
Compl. § V; More Definite Statement (MDS) ¶ 4(A).) Beginning in
September 2009, Beard was housed in the Chronic Care Unit, a multibed unit with thirteen other medically designated women. (Amend
Compl. § V.)

Due to the size and configuration of this unit, Beard

claims that she was required to sleep only 24 inches away from
another inmate allegedly having a staphylococcus infection. (Amend
Compl. § V; MDS ¶ 4(A).)
Upset about the housing arrangements in the Chronic Care Unit,
Beard

“complained

about

the

proximity

of

the

beds

and

the

infectious inmate to Counselor William [Pendergraft].” (Amend.
Compl. § V.)

She also relates that she wrote a “cop-out” (an

informal request for resolution to prison staff) seeking to have
the infected inmate removed from the Chronic Care Unit, but this
request

was

denied.

(MDS

¶¶

6,

10.)

Beard

writes

that

she

complained to Pendergraft both orally and in writing. (MDS ¶ 6.)
Beard also recites that she complained about the housing to prison
staff and to then-warden Chapman at “Mainline.”17 (Amend. Compl. §
V; MDS ¶ 4(A).)

Beard also alleges that while in the Chronic Care

Unit, and as a result of having to “sleep 24 inches from an inmate
infected with staphylococcus infection, she developed a rash that
was treated with soap, water and hydrocortisone cream. (MDS ¶¶ 6,
10.) Beard recites that her housing in the Chronic Care Unit, near

17

“Mainline” refers to regular occassions at which prison staff make
themselves available to inmates for informal discussion and to receive and
address informal complaints. See Vinzant v. United States, No.07-024 VAP, 2011
WL 6132741, at *9 (C.D. Cal. Sep. 2, 2011), rep and rec. adopted, in part,
rejected, in part (Dec. 8, 2011).

5

another

allegedly

infected

inmate,

was

cruel

and

unusual

punishment, in violation of the Eighth Amendment. (MDS ¶¶ 4(A), 6.)
Beard was moved out of the Chronic Care Unit to a different
area of FMC--Carswell, the South Unit, in December 2009. (Amend
Compl. § V.) Beard recites that the conditions were also poor in
the

South

Unit,

with

inmates

having

“every

kind

of

medical

conditions, diseases, including HIV, Hepatitis, and Herpes, and
other illnesses housed together four to a one-man cubicle.” (Amend.
Compl. § V.) After being in the South Unit for a few weeks, Beard
noticed on December 30, 2009, that she was developing eruptions or
lesions on her lower abdomen and back. (Amend Compl. § V.)

Copies

of medical records provided by Beard show she was treated on
December 31, 2009 for complaints to a “rash on trunk area,”
assessed as having herpes simplex, and given Acyclovir 800 mg-five times a day, along with hydrocortisone cream. (Amend Compl.,
attachments 22-23.) Beard was again treated for a skin rash on
January 8, 2010, with her subjective complaints of “infected
lesions from scratching,” assessed as “having other disorders of
the skin,” and given a prescription for Bacitracin/Polymyxin B
ointment. (Amend. Compl. , attachments 25-26.) On January 19, 2010,
Beard was again treated for an itchy skin rash, assessed to have
Dermatomycosis, and given a prescriptions for Mionazole cream to
apply topically. (Amend. Compl., attachments 27-29.)
Beard’s allegations against Hernandez and Hunter relate to the
medical treatment for her skin condition. Specifically, although
Beard received medical treatment for the skin condition in late

6

2009 and early 2010, as listed above, Beard’s request for follow-up
care and treatment were disregarded or ignored by Hernandez and
Hunter. (MDS ¶¶ 5(A), 5(B).)

Beard recites that Hernandez failed

to acknowledge her skin eruptions, and ordered no blood work or
follow-up care. (MDS ¶ 5(A).) Similarly, Hunter is alleged to have
not responded to Beard’s e-mails about the allegedly inadequate
medical care and to have disregarded Beard’s concerns expressed
orally. (MDS ¶ 5(B).)
Beard alleges that she has suffered permanent scarring and
discoloration of her abdomen and lower back area that is noticeable
when she is showering and undressing. (Amend Compl. § V; MDS ¶ 14.)
Beard allegations against Chapman and Pendergraft arise from her
claims that they failed to intervene in response to her complains
about her housing in the Chronic Care Unit. Beard contends that the
alleged acts or omissions of Hernandez and Hunter with respect to
her medical treatment constituted cruel and unusual punishment in
violation of the Eighth Amendment. (MDS ¶¶ 5(A) 5(B).) Beard
recites that defendant Reyes, was “supposed to head of clinic
personnel,” failed to answer specific questions she directed to him
regarding her health and need for follow-up appointments, and
“disregarded [her] request for personal information pertaining to
the viral infection and follow-up care.” (MDS ¶ 8.)
Analysis–-Absolute Immunity–-Dr. Reyes
Defendant Reyes seeks summary judgment on the basis that he is
entitled to absolute immunity from Plaintiff's claim of deliberate
indifference to her serious medical needs. Reyes asserts in the

7

summary-judgment motion that as an officer of the Public Health
Service, 42 U.S.C. § 233(a) bars him from suit under Bivens v. Six
Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S.
388 (1971) in his individual capacity for constitutional violations
arising out of the performance of his official duties. Section
233(a) provides:
The remedy against the United States provided by sections
1346(b) and 2672 of Title 28, or by alternative benefits
provided by the United States where the availability of
such benefits precludes a remedy under section 1346(b) of
Title 28, for damage for personal injury, including
death, resulting from the performance of medical,
surgical, dental, or related functions, including the
conduct of clinical studies or investigation, by any
commissioned officer or employee of the Public Health
Service while acting within the scope of his office or
employment, shall be exclusive of any other civil action
or proceeding by reason of the same subject-matter
against the officer or employee (or his estate) whose act
or omission gave rise to the claim.18
In Hui V. Castaneda, 559 U.S. 799 (2010), the Supreme Court
determined that this language “grants absolute immunity to PHS
officers and employees for actions arising out of the performance
of

medical

or

related

functions

within

the

scope

of

their

employment by barring all actions against them for such conduct.”19
The Supreme Court also stated that “[b]ased on the plain language
of § 233(a), we conclude that PHS officers and employees are not
personally subject to Bivens actions for harms arising out of such
conduct.”20

18

42 U.S.C.A. § 233(a)(West 2003).

19

Castaneda, 559 U.S. at 806.

20

Id., at 802.

8

Defendant Reyes provided a declaration in which he attests
that, over the past 16 years, he has been a commissioned officer of
the United States Public Health Service, presently detailed to the
Health Resources and Service Administration, but that during the
time of the events made the basis of this case, was detailed to the
BOP

at

FMC--Carswell,

where

he

last

Director. (Reyes Declaration ¶ 1.)

served

as

the

Clinical

He also states that any

involvement he may have had regarding the acts alleged in the
complaint would have occurred within the scope of his official
duties as clinical director at Carswell. (Reyes Declaration ¶¶ 23.)

Plaintiff

absolute

raises

immunity,

arguments

but

her

about

arguments

the

inapplicability

cannot

overcome

of
the

application of the holding of Hui v. Casteneda to Reyes’s service
as a commissioned officer of the PHS. Based on the foregoing, this
Court concludes that Beard’s Bivens action against defendant Reyes
is barred by absolute immunity. Thus, Reyes’s motion for summary
judgment should be granted on that basis.
Failure to Exhaust Administrative Remedies
The remaining defendants argue that as to the claims arising
from Beard’s care and treatment after her placement in the South
Unit in late 2009, inclusive of all of Beard’s claims against
Hernandez and Hunter,21 she failed to exhaust her administrative

21

Defendants’ Chapman and Pendergraft acknowledge that Beard properly
completed all administrative exhaustion steps of her claims related to her
housing and care in the Chronic Care Unit arising from the incidents in the fall
of 2009. Defendants Chapman and Pendergraft assert the defense of qualified
immunity to Beard’s claim arising from the Chronic Care unit as discussed infra.

9

remedies prior to filing suit as required under 42 U.S.C. §
1997e(a). That statute provides that “[n]o action shall be brought
with respect to prison conditions under [42 U.S.C. § 1983], or any
other Federal law, by a prisoner confined in any jail, prison, or
other correctional facility until such administrative remedies as
are available are exhausted.”22 In Booth v. Churner, 532 U.S.
731(2001), the Supreme Court held that Congress intended thereby
that a prisoner must invoke whatever administrative grievance
remedies are available within a jail or prison, without regard to
whether the grievance procedure affords money-damage relief, before
he may bring a suit contesting prison conditions in federal court.23
Thus,

exhaustion

is

required

whether

the

plaintiff

seeks

declaratory and injunctive relief, monetary damages, or both.24 The
Supreme

Court

later

clarified

that

the

1997e(a)

exhaustion

requirement “applies to all inmate suits about prison life, whether
they involve general circumstances or particular episodes, and
whether they allege excessive force or some other wrong.”25

As the

United States Court of Appeals for the Fifth Circuit has explained:
Quibbles about the nature of a prisoner’s complaint, the
type of remedy sought, and the sufficiency or breadth of
prison grievance procedures were laid to rest in Booth.
Justice Souter summed up the Court’s conclusion in a
footnote:
Here, we hold only that Congress has provided
in § 1997e(a) that an inmate must exhaust
22

42 U.S.C.A. § 1997e(a)(West 2003).

23

Booth, 532 U.S. at 738-41.

24

Id.

25

Porter v. Nussle, 534 U.S. 516, 532 (2002).

10

irrespective of the forms of relief sought and
offered through administrative avenues.26
The Supreme Court later determined that the exhaustion required by
1997e(a) is “proper exhaustion,” meaning that the inmate must
complete whatever administrative review steps are provided in
accordance

with

the

applicable

procedural

rules,

without

any

exception for untimely, unavailable, or procedurally defective
attempts at exhaustion.27
At the time of the events made the basis of this complaint in
June 2011, plaintiff Beard was still at FMC–Carswell, a Bureau of
Prisons institution. Thus, Beard was required to first exhaust
administrative remedies on all of her claims through the BOP. The
federal Administrative Remedy Program established by the BOP is one
through which an inmate may seek formal review of issues that
relate to his confinement.28 Other administrative procedures are in
place for claims under the Federal Tort Claims, Inmate Accident
Compensation, Freedom of Information, and Privacy Acts.29 Under the
Administrative Remedy Program, the inmate is to first submit a
complaint informally to institution staff and, if the complaint is
not resolved to his satisfaction, the inmate must commence a three-

26

Wright v. Hollingsworth, 260 F.3d 357, 358 (5th Cir. 2001)(citing Booth,
532 U.S. at 741 n.6).
27

See Woodford v. Ngo, 548 U.S. 81 (2006).

28

28 C.F.R. § 542.10 (2012).

29

28 C.F.R. § 542.10(b)(2012). The administrative remedy provisions
applicable to a claim under the Federal Tort Claims Act are set out at 28 C.F.R.
§§ 543.30-32(2012) and 28 C.F.R. § 14.1-14.11 (2012).

11

level administrative procedure within the BOP.30 An inmate has not
fully exhausted this administrative program until he has appealed
through all levels.31
Beard did file a BP-9 administrative remedy form request with
the institution, dated February 5, 2010, complaining of a skin
condition

and

her

South

Unit

housing.

Beard’s

signed

administrative-remedy request form read as follows:
On December 29, 2009, while showering, I discovered
several eruptions on my body (abdomen and back). At sick
call, I was told that I had a skin virus, shingles./ I
was placed on Acyclovir, 800 mg, five times daily for a
period of seven days and hydrocortisone cream, twice
daily. The exceeding conditions such as proximity of
bedding,
infectious
inmates
mixed
with
general
population, and toxic levels of mold are causing many of
the unsanitized [sic] conditions. I never had chicken
pox, and to caught a form of shingles is terrifying.
This is suppose to be a medical center for God’s sakes.
I don’t need to be getting any communicable diseases at
my age. Something definitely needs to be done.(Request
for Administrative Remedy (Case No. 581910-F1),
Defendant’s Appendix at 7.)
Records show, however, that this request was withdrawn and was
never ruled on by the warden at the institution level. (Martinez
April 5, 2013 Declaration, Appendix 4.)

Rather, on the section of

the BP-9 form above, entitled “Response” and dated March 26, 2010,
is written: “Resolution Resolved--Acyclovir and Hydrocortisone
medication was given and taken starting 12/31/2009. Patient states

30

See 28 C.F.R. §§ 542.14-15 (2012). The three steps above the informalresolution stage take the complainant to the institution's administrator (warden)
on a form known as a BP-9; then if dissatisfied, through appeal to the regional
director on a form known as a BP-10; and, if the inmate remains dissatisfied,
then finally to the BOP’s central office (general counsel) using a BP-11 form.
31

Irwin v. Hawk, 40 F.3d 347, 349 n.2 (11th Cir. 1994), cert denied, 516
U.S. 835 (1995).

12

the itching and rash is gone except for discoloration on lower
abdomen and back.” (Request for Administrative Remedy (Case No.
581910-F1), Defendant’s Appendix at 7.) This section is signed by
Beard and by J. Kirvin, identified as an RN. Beard acknowledges
that she met with J. Kirvin, a registered nurse on March 26, 2010.
(Beard May 25, 2013 Declaration at ¶ 2.) The records of the BOP
show that Beard did not otherwise take any regional or central
office appeals from the withdrawn BP-9 form. (April 5, 2013
Declaration of Martinez ¶¶ 5-6.)

Although Beard argues that she

never received a copy of the form after meeting with Kirvin, and
that this prevented her from completing exhaustion, such argument
is unavailing. (Beard May 25, 2013 Declaration ¶ 2.) Because the
BP-9 was informally resolved, it was withdrawn without the need for
any formal response from the warden. (Declaration of Martinez ¶ 5.)
Accordingly, Beard has not exhausted any claims relating to followup medical treatment of her skin condition, and she cannot proceed
in this Court with such claims.32
Beard has not exhausted administrative remedies relating to
her claims of inadequate follow-up medical care and evaluation of
her skin condition in 2010 before commencing this suit. Therefore,
the defendants’ motion for summary judgment must be granted as to

32

See 42 U.S.C. § 1997e(a)(West 2012); see also McDowall v. Metro
Correctional Center, No.08-CIV-8329, 2010 WL 649744, at * 5 (S.D.N.Y. Feb. 22,
2010)(“[W]ithdrawal of an administrative remedy request prior to a decision on
the merits does not satisfy the PLRA exhaustion requirement”); Lopez v. White,
No. 07-CV-163, 2010 WL 152103, at *9 (N.D. W. Va. Jan, 14, 2010)(where an
administrative remedy request is filed but then informally resolved, with no
further attempt to exhaust administrative remedies, the claim is unexhausted);
Foster v. Coody, No.06-249, 2008 WL 544676, at *4 (M.D.La. Feb. 28, 2008)(a
withdrawn grievance fails to exhaust administrative remedies).

13

all such claims on the basis of lack of exhaustion.
Qualified Immunity–-Pendergraft and Chapman
Defendants Pendergraft and Chapman seek summary judgment on
Beard’s claims arising from her housing in the Chronic Care unit in
the fall of 2009, on the basis that they are entitled to qualified
immunity from Plaintiff’s claim of a constitutional violation.33 The
doctrine of qualified immunity “protects government officials from
suit and liability for civil damages under § 198334 insofar as their
conduct

does

not

violate

clearly

established

statutory

or

constitutional rights of which a reasonable person would have
known.”35 This is an affirmative defense that balances the important
interests

of

holding

“public

officials

accountable

when

they

exercise power irresponsibly and the need to shield officials from
harassment, distraction, and liability when they perform their
duties reasonably.”36 Because an official is entitled to immunity
from suit, not merely from liability, immunity questions should be

33

As noted above, any claims against defendants Chapman and Pendergraft
arising from Beard’s claims after her transfer to the South Unit were dismissed
on the basis of lack of exhaustion. See footnote 21 supra.
34

As Beard was in federal custody and names as defendants federal government
officials, her claims are construed as seeking relief under Bivens v. Six Unknown
Named Agents of the Federal Bureau of Narcotics (“Bivens”), 403 U.S. 388, 297
(1971). Bivens, of course, is the counterpart to 42 U.S.C. § 1983, and extends
the protections afforded under § 1983 to parties injured by federal actors. See
Evans v. Ball, 168 F.3d 856, 863 n. 10(5th Cir. 1999) (“A Bivens action is
analogous to an action under § 1983--the only difference being that § 1983
applies to constitutional violations by state, rather than federal officials”),
overruled on other grounds, Castellano v. Fragozo, 352 F.3d 939, 948-49 & n. 36
(5th Cir. 2003), cert den’d, 543 U.S. (2004).
35

Byers v. Navarro County, No.3:09-CV-1792-D, 2012 WL 677203, at *2
(N.D.Tex. Mar. 1, 2012)(Fitzwater, CJ)(citing Pearson v. Callahan, 555 U.S. 223,
231 (2009) and Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).
36

Pearson, 555 U.S. at 231.

14

resolved at the earliest possible stage in the litigation.37
The Supreme Court has developed a two-step inquiry for
resolving government officials’ qualified immunity claims: (1)
whether the facts that the plaintiff has alleged (at the motion-todismiss stage) or shown (at the summary-judgment stage) make out a
violation of a constitutional or statutory right; and (2) whether
the right at issue was “clearly established” at the time of the
defendant’s

alleged

misconduct.38

Although

the

Supreme

Court

previously mandated that the two steps be resolved in sequence, in
Pearson v. Callahan, it gave the lower courts permission to use
discretion in deciding which of the two prongs to address first in
light of the circumstances of the particular case.39 In conducting
the inquiry under the first prong–-whether the Plaintiff has
alleged or shown a violation of a constitutional right–-the Court
is to “employ currently applicable constitutional standards.”40 In
this case, the Court will resolve the defendants’ summary judgment
motion through analysis of the first prong of the qualified
immunity inquiry.

37

Hunter v. Bryant, 502 U.S. 224, 227 (1991).

38

Pearson, 555 U.S. at 232 (citing Saucier v. Katz, 533 U.S. 194, 201
(2001)).
39

Pearson, 555 U.S. at 236 (rejecting the prior holding in Saucier v. Katz,
that the analysis was a mandatory two-step sequence); see also Lytle v. Bexar
County, Tex., 560 F.3d 404, 409 (5th Cir. 2009), cert. den’d, 130 S.Ct. 1896
(2010).
40

Kinney v. Weaver, 367 F.3d 337, 350 (5th Cir. 2004)(en banc).

15

A qualified-immunity defense alters the usual summary judgment
burden of proof.41

When a defendant has asserted that defense in

a summary-judgment motion, the burden then shifts to the plaintiff
to demonstrate the inapplicability of the defense.42 But, being the
non-moving party, all inferences are drawn in the plaintiff’s
favor.43

Nevertheless,

conclusional

allegations

and

denials,

speculation, improbable inferences, unsubstantiated assertions, and
legalistic argumentation will not suffice.44
Violation of a Constitutional Right
The gravamen of Beard’s claims against Pendergraft and Chapman
is that she was required to share housing with, and sleep within a
few feet of, a fellow inmate alleged to have a staph infection.
(MDS ¶¶ 4(A), 6.) She alleges that each of these defendants
subjected her to cruel and unusual punishment under the Eighth
Amendment. (Id.) In order to establish a violation of the Eighth
Amendment relating to an inmate’s challenge to his conditions of
confinement, two requirements must be met:
First, the prison official's act or omission must be
objectively serious, in that it “result[s] in the denial
of the minimal civilized measure of life's necessities.”
[Farmer], at 834 (citations and internal quotation marks
omitted). “For a claim ... based on a failure to prevent
harm, the inmate must show that he is incarcerated under

41

See Brown v. Callahan, 623 F.3d 249, 253 (5th Cir. 2010), cert. den’d,
131 S.Ct. 2932 (2011).
42

McClendon v. City of Columbia, 305 F.3d 314, 323 (5th Cir. 2002)(en
banc)(per curiam).
43

See Brown, 623 F.3d at 253.

44

See Edwards v. Loggins, 476 F. App’x 325, 328 (5th Cir. 2012)(quoting
Oliver v. Scott, 276 F.3d 736, 744 (5th Cir. 2002)).

16

conditions posing a substantial risk of serious harm.”
Id. “Some conditions of confinement may establish an
Eighth Amendment violation in combination when each would
not do so alone, but only when they have a mutually
enforcing effect that produces the deprivation of a
single, identifiable human need such as food, warmth, or
exercise—for example, a low cell temperature at night
combined with a failure to issue blankets.”Wilson v.
Seiter, 501 U.S. 294, 304 (1991)(emphasis, citations, and
internal quotation marks omitted).
Second,
the
“prison
official
must
have
a
sufficiently culpable state of mind,” meaning that the
official was “deliberate[ly] indifferen[t] to inmate
health or safety.” Farmer, 511 U.S. at 834. (citations
and internal quotation marks omitted). A prison official
cannot be liable for deliberate indifference “unless the
official knows of and disregards an excessive risk to
inmate health or safety; the official must both be aware
of facts from which the inference could be drawn that a
substantial risk of serious harm exists, and he must also
draw the inference.”
Id.
at 837. “[S]ubjective
recklessness as used in the criminal law is ... the test
for
‘deliberate
indifference’
under
the
Eighth
Amendment.” Id. at 839-40.45
With regard to a claims based upon denial of medical care,
deliberate indifference to a prisoner's serious medical needs has
also been deemed to amount to cruel and unusual punishment under
the Eighth Amendment.46 Such a finding of deliberate indifference,
though, “must rest on facts clearly evincing 'wanton' actions on
the

parts

of

the

defendants.”47

This

subjective

deliberate-

indifference standard is the same as recited above for a case based
upon a violation of conditions of confinement–-the official must
know of and disregard the risk to inmate health, and be aware of

45

Blackmon v. Garza, 484 F. App’x 866, 869 (5th Cir. 2012).

46

Estelle v. Gamble, 429 U.S. 97, 104-106 (1976).

47

Johnson v. Treen, 759 F.2d 1236, 1238 (5th Cir. 1985); see also Wilson,
501 U.S. at 297.

17

facts to draw an inference that a risk of serious harm exists.48
As noted by the defendants Chapman and Pendergraft in their
motions,

it

is

important

to

clarify

that

Beard’s

remaining

complaints about her housing from September through December 2009
occurred in a prison hospital setting in which Beard and certain
other inmates had been “medically designated” for placement in that
chronic-care facility within the institution.(MDS ¶ 6.) Under these
circumstances, Beard’s allegations do not arise to the level of a
constitutional violation.
With
neither

regard

is

to

alleged

both
to

be

defendants
a

doctor,

Chapman
nurse

and
or

Pendergraft,

other

medical

professional. (Amend. Compl. § V; MDS ¶¶ 4(B) and 6.) “‘If a
prisoner is under the care of medical experts . . ., a non-medical
prison official will generally be justified in believing that the
prisoner is in capable hands.’”49 Accordingly, absent specifically
pleaded facts showing a culpable state of mental state, a nonmedical official “‘will not be chargeable with the Eighth Amendment
scienter requirement of deliberate indifference.’”50

48

(5

th

Farmer, 511 U.S. at 837; see also Reeves v. Collins, 27 F.3d 174, 176-77
Cir. 1994)(applying Farmer to a claim for denial of medical care).
49

Welch v. Tex. Tech. Univ. Health Serv. Ctr., No.2:09-CV-0291, 2012 WL
5986424, at *5 (N.D.Tex. Nov. 7, 2012)(quoting Spruill v. Gillis, 372 F.3d 218,
236 (3d Cir. 2004), rep. and rec. adopted, (Nov. 29, 2012).
50

Id.; see also Johnson v. Doughty, 433 F.3d 1001, 1012 (7th Cir. 2006)(“A
non-medical prison official . . . cannot be held deliberately indifferent simply
because [he] failed to respond directly to the medical complaints of a prisoner
who was already being treated by the prison doctor”)(internal quotation marks
omitted).

18

In this case, Beard’s pleadings identify no facts showing that
either Chapman or Pendergraft, the warden and a counselor, had any
basis to interfere with the medical designations concerning which
inmates were to be housed in the Chronic Care Unit, and in what
manner there were housed. A Bivens claim requires a showing that
the individual defendant was personally involved in committing some
alleged wrong.51 As to Pendergraft, the only alleged personal
involvement with the housing placement in the Chronic Care Unit is
Beard’s claim that she made informal requests and filed a grievance
with Pendergraft about her concerns. (Amend. Compl. § V; MDS ¶¶ 6,
10.) With regard to Chapman, Beard alleges that she brought up the
matter

with

Warden

Chapman

at

“Mainline.”

(MDS

¶

4(A).)

Importantly, neither Chapman or Pendergraft are alleged to have had
any personal involvement in making the actual medical determination
about how and under what conditions to house inmates, or remove
inmates from, the Chronic Care Unit. Also, neither defendant is
alleged to have interfered with or prevented medical staff from
administering the Chronic Care Unit in the manner they determined
to be proper.
Further, although Beard alleges that Chapman assured her that
the “administration will look into it” but that “no changes
occurred,” and that a “cop-out” requesting the removal of the
allegedly infected inmate was denied, she does not contend that her
informal requests were ignored or set aside.

51

The records provided

See Guerrero-Aguilar v. Ruano, 118 F. App’x 832, 833 (5th Cir. 2004).

19

with

Beard’s

amended

complaint

show

that

her

grievances

and

informal requests about the conditions in the Chronic Care Unit
were in fact considered and answered with written responses.
(Amend. Compl., September 18, 2009 Inmate Request to Staff about
housing conditions with inmate with possible staph infection,
answered same day, attachment 30; Documentation of an Informal
Resolution Attempt, with the counselor’s comments section completed
and returned to Beard). Furthermore, Beard was not prevented from
participating in the formal administrative-remedy process, where
her concerns regarding the Chronic Care Unit were addressed at the
institutional,
attachments

regional,

8-16.)

The

and
fact

national
that

levels.

Beard

(Amend.

disagreed

Compl.

with

the

resolution of this process and disagreed with the way the Chronic
Care Unit was administered, does not relate to whether Chapman or
Pendergraft, neither of whom is a medical professional, could be
said to be deliberately indifferent to an excessive risk to inmate
health or safety.
In

sum,

because

Beard’s

allegations

against

Chapman

and

Pendergraft relate to her placement and housing in a medical-care
unit under the care and direction of medical personnel, she has
failed to allege sufficient facts to state a claim of violation of
a

constitutional

right

against

them.

Defendants

Chapman

and

Pendergraft are therefore entitled to summary judgment based on
qualified immunity because Beard has not satisfied the first
element of the qualified-immunity analysis.

20

ORDER
Therefore, the following motions to dismiss, construed as
motions for summary judgment, are GRANTED:
the April 22, 3013 motion of Hernan Reyes, M.D. (Doc. 26);
the April 22, 2013 motion of Bill Pendergraft (doc. 28);
the April 22, 2013 motion of Pedro Hernandez and Ronda
Hunter (doc. 29); and
the June 26, 2013 motion of Elaine Chapman (doc. 42).
Plaintiff Beared shall take nothing on her remaining claims
against defendants Elaine Chapman, Pedro Hernandez, Ronda Hunter,
Bill Pendergraft, and Hernan Reyes, M.D., and such claims are
DISMISSED WITH PREJUDICE.
SIGNED November 7, 2013.
____________________________
TERRY R. MEANS
UNITED STATES DISTRICT JUDGE

21