Hampton v. Brindley et al
Filing
50
MEMORANDUM OPINION AND ORDER granting 42 SEALED MOTION (Signed by Judge Jeffrey V Brown) Parties notified.(agould, 3)
United States District Court
Southern District of Texas
ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
GALVESTON DIVISION
JARRETT HAMPTON,
VS.
Plaintiff,
DR. EDGAR HULIPAS,
Defendant.
November 06, 2019
David J. Bradley, Clerk
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§ CIVIL ACTION NO. 3:17-CV-299
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MEMORANDUM OPINION AND ORDER
State inmate Jarrett Hampton (TDCJ #816800) filed a complaint under 42
U.S.C. § 1983 (Dkt. 1) alleging that he was denied adequate medical care in
violation of his constitutional rights. The only claim that remains in this lawsuit is
Hampton’s allegation that Dr. Edgar Hulipas violated his rights under the Eighth
Amendment by delaying his access to medical care by specialists for a chronic
condition known as sarcoidosis (Dkt. 21).
Hampton has filed an amended
complaint concerning this allegation (Dkt. 23) and he has also provided a more
definite statement of the facts in support of this claim (Dkt. 26). Dr. Hulipas has
filed a motion for summary judgment (Dkt. 41). In response, Hampton has filed a
declaration with exhibits (Dkt. 46), a brief in opposition (Dkt. 47), and a statement
of “disputed factual issues” (Dkt. 48). After reviewing all of the pleadings, the
parties’ briefing, the exhibits, and the applicable law, the court will grant the
defendant’s motion and dismiss this case for the reasons that follow.
I.
BACKGROUND
Throughout this lawsuit Hampton has been incarcerated by the Texas
Department of Criminal Justice – Correctional Institutions Division (“TDCJ”) at
the Darrington Unit in Rosharon (Dkt. 1, at 1).1 Dr. Hulipas is a physician
employed by the University of Texas Medical Branch (“UTMB”), who works in the
clinic located at the Darrington Unit (Id. at 3). As detailed more fully below,
Hampton contends that Dr. Hulipas violated his rights by delaying his access to
treatment by specialists with the dermatology department at the UTMB Hospital
in Galveston, which provides care for state inmates confined in TDCJ through a
variety of specialty clinics.
A.
Records of Hampton’s Medical Care
Dr. Hulipas has provided records of the medical care that Hampton received
during the period of time relevant to this lawsuit (Dkt. 42-1, at 3-105). He has also
provided an affidavit from Dr. Steven Bowers, who is employed by UTMB (Dkt. 423, at 2-7), which summarizes those records in chronological order (Id., at 8-98).
Hampton has also provided medical records with his response to the motion for
summary judgment (Dkt. 46, Exhibits 1-8) which duplicate many of those provided
by the defendant.
Unless otherwise indicated, all page numbers reference the pagination imprinted on each docket
entry by the court’s electronic filing system, CM/ECF.
1
2
The medical records show that on October 17, 2014, Hampton was seen for
a follow-up appointment with an otolaryngologist at the UTMB Hospital Ear Nose
and Throat (“ENT”) Department, where he was receiving treatment for problems
associated a chronic sinus infection and a history of “left sided nasal obstruction”
that was the result of “nasal trauma” sustained by Hampton “7-8 years ago” (Dkt.
46-8, at 2, 4-5). At some point, a provider authorized endoscopic surgery to correct
Hampton’s deviated septum, which was scheduled to take place on January 8, 2015
(Dkt. 46-1, at 3). The procedure could not be performed as scheduled, however,
because the surgeon (Dr. Paul Brindley) noted that Hampton had what appeared
to be an acute staph infection affecting his columella, which is the bridge or column
separating the nostrils at the cleft of the upper lip (Dkt. 42-3, at 14). Those
symptoms were treated with antibiotics and steroids (Id.).
When the symptoms of infection persisted, the ENT department ordered a
biopsy of the affected area on May 19, 2015 (Id. at 17). Because Hampton’s
infection implicated the skin around his nose, he was referred for an examination
by a specialist in dermatology (Id. at 14).
On November 17, 2015, Dr. Rebecca Phillips examined Hampton at the
UTMB Hospital Dermatology Department for what was described as a “rash on
[his] nose” (Dkt. 42-3, at 17). After considering Hampton’s history of nasal trauma,
Dr. Phillips observed that his symptoms were consistent with a diagnosis of
sarcoidosis (Id. at 17-20).
3
Dr. Bowers explains that “[s]arcoidosis is a disease characterized by the
growth of tiny collections of inflammatory cells (granulomas),” which can occur in
any part of the body, but appear “most commonly [in] the lungs and lymph nodes”
(Dkt. 42-3, at 6). According to Dr. Bowers, sarcoidosis can also affect “the eyes,
skin, heart and other organs” (Id.). The symptoms, which consist of inflammation
or lesions on the affected tissues, can be relieved with medication, but there is no
known cure for sarcoidosis (Id.). Although there is no known cure, Dr. Bowers
notes that “in many cases, it goes away on its own” (Id.).
During her initial evaluation on November 17, 2015, Dr. Phillips ordered
further tests of the specimen collected during the biopsy on May 19, 2015, to
confirm the diagnosis of sarcoidosis and to determine whether there was “systemic
involvement” (Dkt. 42-3, at 20). Additional tests, which were completed on
November 17, 2015, included chest x-rays, an EKG, urinalysis, CBC, and a complete
metabolic panel (Id.). Hampton was also scheduled for an eye examination and
pulmonary function test at a later date (Id. at 23).
On November 30, 2015, Dr. Phillips confirmed that the specimen taken from
the biopsy of Hampton’s left nasal vestibule on May 19, 2015, was consistent with
the diagnosis of sarcoidosis, but determined from his other test results that the
disease was limited to the skin around his nose and that there was no evidence of
systemic involvement (Dkt. 42-3, at 23). Dr. Phillips reviewed the expected course
of treatment and management options for sarcoidosis of the skin with Hampton’s
“unit provider” by telephone (Id.). The parties do not dispute that Dr. Hulipas was
4
Hampton’s unit provider and that he is the one who spoke with Dr. Phillips on this
occasion. According to her proposed plan of care, Dr. Phillips prescribed a topical
steroid (fluocinonide 0.05% cream) to be applied to the affected area on
Hampton’s nose (Id.). If there was “no response” to the topical cream, Dr. Phillips
recommended considering “intralesional kenalog” treatment (Id.). If there was
“still no response,” then the plan was to consider another steroid, such as
“hydroxychloroquine” (Id.). Dr. Phillips recommended a follow-up appointment
for Hampton at the dermatology department in three months (Id.).
On December 1, 2015, a nurse practitioner met with Hampton at the
Darrington Unit clinic and reviewed the plan of care that was proposed by Dr.
Phillips to treat sarcoidosis of the skin (Dkt. 42-3, at 26). Consistent with the
proposed treatment plan, Hampton was given a prescription for fluocinonide
cream with instructions to apply a thin layer to the affected area twice a day (Id. at
27).
Dr. Hulipas approved the treatment that was dispensed by the nurse
practitioner (Id.).
On December 3, 2015, Hampton saw Dr. Hulipas in the clinic for a followup appointment at the Darrington Unit clinic (Dkt. 42-3, at 29-30). Dr. Hulipas
noted that Hampton was “doing fine” and discussed Hampton’s lab results as well
as the prescribed medication regimen (Id.).
On December 10, 2015, Hampton submitted a “sick call request” to the clinic
at the Darrington Unit, requesting a refill for “saline nasal spray” and to find out
when he was scheduled to return to the UTMB Hospital in Galveston (Dkt. 42-3,
5
at 32). That same day, Dr. Hulipas approved the requested refill and advised
Hampton that appointments with both the ENT and Dermatology departments
were pending (Id.).
On January 19, 2016, Hampton returned to the ENT department for a
follow-up visit with an otolaryngologist regarding his chronic sinus issues and
history of nasal obstruction (Dkt. 42-3, at 38-40). Hampton reported that he had
been using saline spray to treat nasal dryness and noted that he had a sore throat
(Id. at 38). After strep throat was ruled out, the treating physician prescribed
Claritin, Nasilide nasal spray, and saline nasal spray as needed to treat Hampton’s
symptoms (Id. at 40). After discussing his symptoms, the treatment provider
recommended further deferring surgery to correct Hampton’s deviated septum
until after the inflammation around his nose was resolved (Id. at 39).
On January 21, 2016, Hampton submitted a sick-call request asking for the
medication recommended by the ENT department (Dkt. 42-3, at 45). Dr. Hulipas
noted that the prescription for Claritin had been ordered, but that Nasilide nasal
spray and another prescription for the antibiotic Levaquin required a nonformulary request (Id.). Dr. Hulipas submitted the non-formulary requests, which
were approved by the prison pharmacy that same day (Dkt. 42-3, at 46-47).
On March 1, 2016, Hampton attended a follow-up appointment at the
hospital in Galveston with Dr. Alison Lowe of the dermatology department (Dkt.
42-3, at 51-56). Dr. Lowe noted “significant improvement” in Hampton’s “nasal
lesion” with the topical cream that had been prescribed by Dr. Phillips on
6
November 30, 2015 (Id. at 51). Hampton reported that he previously experienced
an episode of dizziness and chest pain, but Dr. Lowe noted that his most recent
EKG was “within normal limits” (Id.). The results of a recent pulmonary-function
test, which was performed on January 25, 2016, were also normal (Id. at 54). Dr.
Lowe elected to continue Hampton’s treatment with fluocinonide 0.05% cream
and recommended a routine follow-up visit to the dermatology department in six
months (Id. at 54-55). With regard to Hampton’s complaints of chest pain, Dr.
Lowe noted that arrhythmia was a concern due to his diagnosis of sarcoidosis, but
that he was currently “asymptomatic” (Id. at 55). She advised Hampton that
“should symptoms [of chest pain] recur,” he should alert his unit physician
immediately to determine whether an EKG or referral to the cardiac department
was warranted (Id.).
On April 22, 2016, Hampton returned to the UTMB Hospital in Galveston
for a follow-up examination for his persistent sinus issues by an otolaryngologist
at the ENT department (Dkt. 42-3, at 60). The examining physician noted that
Hampton continued to receive treatment in the form of a topical steroid cream for
inflammation on his nose caused by sarcoidosis (Id.). He noted “a recent flair [sic]”
of Hampton’s symptoms of inflammation, but that those symptoms were
“currently resolving” (Id.) The physician observed inflammation on Hampton’s
columella and upper lip, which were consistent with his diagnosis of sarcoidosis
(Id. at 61). He also observed “mucosal inflammation” at the juncture of the hard
and soft palate of Hampton’s mouth (Id.). Hampton denied having any “pain in
7
these lesions” (Id. at 60). The ENT specialist continued Hampton’s prescription
for Nasilide nasal spray and scheduled a routine follow-up appointment in six
months (Id. at 62).
On May 31, 2016, Hampton submitted a sick-call request to medical
providers at the Darrington Unit, advising that he had sarcoidosis and that he had
“developed lesions on the bridge of [his] nose and the back of [his] head” (Dkt. 423, at 65). Hampton stated that the “medication” he had been prescribed previously
was “not working,” that his lymph nodes were “swelling,” and that “other lesions”
were starting to appear (Id.). Hampton noted that he also had a lesion in his mouth
that could not be treated “topically” and he feared that his condition was beginning
to “spread rapidly” (Id.). Noting further that he had a follow-up appointment
scheduled with the dermatology department in September, Hampton asked unit
providers to “notify” the UTMB Hospital of the changes in his condition and to
“recommend [an] early visit” (Id.).
Dr. Hulipas received the request and
responded the same day, advising Hampton to keep his upcoming appointment,
which was scheduled for September 2016 (Id.).
On June 22, 2016, Hampton submitted a sick-call request for a refill of his
prescription for loratadine (Claritin) for allergies and associated sinus problems
(Dkt. 42-3, at 67). The request was approved by a nurse practitioner and the
prescription was refilled that same day (Id.).
On July 19, 2016, Hampton submitted a sick-call request for a refill of
Nasonex nasal spray (Dkt. 42-3, at 69). Dr. Hulipas submitted a non-formulary
8
request for this medication, which was approved by the pharmacy that same day
(Id. at 69-71).
Hampton made no further requests for care or complaints to the medical
department about symptoms of sarcoidosis until August 10, 2016, when he
submitted another sick-call request, advising that “as of lately” he had been
experiencing “some pain” around his “nose area” (Dkt. 42-3, at 73). Hampton
added that the bridge or column between his nostrils was “separating from [his]
face” (Id.). Hampton also noted that he had been having “nose bleeds and puss
[sic] running down from the area” (Id.).
Fearing that his sarcoidosis was
“spreading” and that he lacked the proper medication to “slow down this
progression,” Hampton asked officials to contact his dermatologist so that he could
begin a different form of treatment with “interkelog therapy” (Id.).
On August 11, 2016, Hampton was examined by a medical provider at the
Darrington Unit clinic in response to his sick-call request (Dkt. 42-3, at 74).2 The
provider who treated Hampton on that occasion observed “inflammation” on
Hampton’s “columella where it meets the philtrum” or cleft of his upper lip (Dkt.
42-3, at 74). During that examination Hampton was advised to keep his upcoming
appointment with the dermatology department, which was scheduled for
September 6, 2016 (Id.). The provider also continued Hampton’s prescription for
Although the record of the examination is signed by Dr. Hulipas and Nurse Annette Jackson (Id.
at 75), Hampton insists that he was examined by Nurse Practitioner Terry Speer and did not see
Dr. Hulipas that day (Dkt. 46, at 5 ¶ 15).
2
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fluocinonide 0.05% cream and prescribed an antibiotic (sulfamethoxazole tablets)
for ten days (Id. at 75).
On August 22, 2016, Hampton submitted a sick-call request, asking for a
refill of his saline nasal spray (Dkt. 42-3, at 78). Dr. Hulipas granted that request
for a refill the same day (Id. at 78-79).
On September 6, 2016, Hampton attended his scheduled appointment with
the dermatology department and was seen by Dr. Elizabeth D. Schepp (Dkt. 42-3,
at 81-84). Hampton reported that “in May or June” he noticed a “new bump on
the roof of his mouth and on his left forehead,” which had “continued to grow in
size” and were “[s]ometimes painful” (Id.). Dr. Schepp observed that he also had
a “new bump on [his] right upper cutaneous lip and his nasal lesions seem[ed] to
be spreading” (Id.). Hampton had no other “skin complaints” that day (Id.), but
Dr. Schepp observed “pink annular plaques with small areas of erosion” near the
border between the hard and soft palates on the roof of Hampton’s mouth (Id. at
82). She also observed a small area of “indurated red-brown papules and plaques
without scale” on the back of Hampton’s head and a small, but “[f]irm round
dermal/subcutaneous nodule without overlying epidermal change” on his left
forehead (Id. at 83). She discussed Hampton’s treatment options, which included
continuing with a topical fluocinonide cream, interkelog therapy, or “PO steroids”
(Id.).
She advised him to continue using topical cream for his lesions and
prescribed additional treatment with the steroids Prednisone and Plaquenil for the
flare of his cutaneous sarcoidosis (Id. at 83-84).
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Dr. Hulipas approved the
prescriptions recommended by Dr. Schepp on September 8, 2016 (Dkt. 42-3, at
86-88).
On September 20, 2016, Hampton returned to the dermatology department
for a follow-up examination with Dr. Schepp (Dkt. 42-3, at 90). Hampton reported
that his lesions “seem[ed] to be getting better” although he admitted that he was
not using the topical cream prescribed by Dr. Schepp because he was “not sure” he
should use it at the same time as the Prednisone and other medication that she had
previously prescribed (Id.). Dr. Schepp noted that his skin lesions were “much
improved” and that the “oral lesion” in his mouth was “mildly improved” (Id. at
92). Dr. Schepp decreased the dosage of Prednisone and scheduled Hampton for
another follow-up examination by telemedicine in one month, noting that the oral
lesion may need a biopsy by the ENT department if it had not improved by then
(Id. at 92-93).
On October 19, 2016, Hampton had a telemedicine appointment with Dr.
Chinelo Ikpeama of the dermatology department (Dkt. 42-3, at 96). Hampton
advised that all of his lesions seemed to be getting better and that he was using the
topical cream “with good result” (Id.). Dr. Ikpeama further decreased Hampton’s
prescription for Prednisone to “taper off” that medication as his skin lesions
continued to improve (Id. at 97).
Hampton was given another follow-up
appointment by telemedicine the following month (Id. at 97-98).
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B.
The Plaintiff’s Claims and Defendant’s Arguments
Hampton filed his civil-rights complaint in this case on October 6, 2017,
complaining primarily that Dr. Brindley denied him adequate medical care for his
deviated septum when he cancelled the surgery on January 8, 2018 (Dkt. 1, at 3, 4;
Dkt. 1-1, at 1).
Hampton’s claims against Dr. Brindley were dismissed with
prejudice and severed from this case in a memorandum opinion and order entered
on July 27, 2018 (Dkt. 21). A final judgment on those claims was also entered that
same day (Dkt. 22).
Hampton also alleged that Dr. Hulipas violated his constitutional rights by
failing to conduct a physical evaluation of his symptoms of sarcoidosis after
Hampton submitted his sick-call request on May 31, 2016, before advising
Hampton to keep his previously scheduled appointment with the dermatology
department (Dkt. 1-1, at 1-2; Dkt. 26, at 17). Noting that he was not seen by a
specialist in the dermatology department until September 6, 2016, Hampton
contends that Dr. Hulipas acted with “negligence” by failing to immediately refer
him to a specialist, which delayed his access to care for symptoms of sarcoidosis
that had “aggressively progressed” (Dkt. 23, at 11). Hampton seeks unspecified
compensatory and punitive damages from Dr. Hulipas under 42 U.S.C. § 1983 for
violating his rights under the Eighth Amendment (Id. at 14).
Asserting qualified immunity, Dr. Hulipas moves for summary judgment
under Rule 56 of the Federal Rules of Civil Procedure. Specifically, Dr. Hulipas
contends that he did not violate Hampton’s constitutional rights by disregarding a
12
serious risk to Hampton’s health and that the delay in seeing a specialist did not
cause substantial harm or pose a violation of the Eighth Amendment, which is a
prerequisite for establishing a claim under 42 U.S.C. § 1983 (Dkt. 41, at 10-18).
II.
STANDARD OF REVIEW
Rule 56 of the Federal Rules of Civil Procedure provides that a reviewing
court “shall grant summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter
of law.” FED. R. CIV. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 32223 (1986). Under the well-established summary-judgment standard, a fact is
“material” if its resolution in favor of one party might affect the outcome of the suit
under governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
An issue is “genuine” if the evidence is sufficient for a reasonable jury to return a
verdict for the nonmoving party. Id. If the movant demonstrates the absence of a
genuine issue of material fact, the burden shifts to the non-movant to go beyond
the pleadings and provide “specific facts showing the existence of a genuine issue
for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986) (emphasis omitted).
A reviewing court “must view the evidence introduced and all factual
inferences from the evidence in the light most favorable to the party opposing
summary judgment[.]” Smith v. Regional Trans. Auth., 827 F.3d 412, 417 (5th Cir.
2016).
However, a non-movant cannot avoid summary judgment simply by
presenting “conclusory allegations and denials, speculation, improbable
13
inferences, unsubstantiated assertions, and legalistic argumentation.” Jones v.
Lowndes Cnty., Miss., 678 F.3d 344, 348 (5th Cir. 2012) (citations and internal
quotation marks omitted). In other words, the non-movant’s burden is not met by
the manufacture of “some metaphysical doubt as to the material facts.”
Matsushita, 475 U.S at 586; Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.
1994) (en banc) (stating that a non-movant cannot demonstrate a genuine issue of
material fact with conclusory allegations, unsubstantiated assertions, or only a
scintilla of evidence) (citations and internal quotation marks omitted).
The court is mindful of the fact that the plaintiff proceeds pro se in this case.
Courts are required to give a pro se litigant’s contentions, however inartfully
pleaded, a liberal construction. See Erickson v. Pardus, 551 U.S. 89, 94 (2007)
(citing Estelle v. Gamble, 429 U.S. 97, 106 (1976)); see also Haines v. Kerner, 404
U.S. 519, 520 (1972) (noting that allegations in a pro se complaint are held to less
stringent standards than formal pleadings drafted by lawyers). The traditional
standard of leniency toward pro se pleadings, however, does not excuse a pro se
plaintiff from “the burden of opposing summary judgment through the use of
competent summary judgment evidence.” Malcolm v. Vicksburg Warren Sch.
Dist. Bd. of Trustees, 709 F. App’x 243, 246 (5th Cir. 2017) (per curiam) (citing
Davis v. Fernandez, 798 F.3d 290, 293 (5th Cir. 2015) (“Of course, this is not to
say that pro se plaintiffs don’t have to submit competent evidence to avoid
summary judgment, because they do.”)).
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III.
DISCUSSION
Dr. Hulipas has moved for summary judgment on the issue of qualified
immunity,3 which is “an immunity from suit rather than a mere defense to
liability.” Pearson v. Callahan, 555 U.S. 223, 237 (2009) (quoting Mitchell v.
Forsyth, 472 U.S. 511, 526 (1985)). The doctrine of qualified immunity shields
public officials acting within the scope of their authority from claims for monetary
damages so long as “their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.” Id. at 231
(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).
“When properly
applied, it protects ‘all but the plainly incompetent or those who knowingly violate
the law.’” Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011) (quoting Malley v. Briggs,
475 U.S. 335, 341 (1986)); see also Carroll v. Carman, 574 U.S. 13, 17 (2014)
(reversing a decision that denied qualified immunity).
A plaintiff seeking to overcome qualified immunity must satisfy a two-prong
inquiry by showing: “(1) that the official violated a statutory or constitutional right,
and (2) that the right was ‘clearly established’ at the time of the challenged
conduct.” Al-Kidd, 563 U.S. at 735 (citation omitted). “A good-faith assertion of
qualified immunity alters the usual summary judgment burden of proof, shifting it
to the plaintiff to show that the defense is not available.” King v. Handorf, 821 F.3d
650, 653 (5th Cir. 2016) (citations and internal quotation marks omitted). “The
The district court previously dismissed Hampton’s claims against Dr. Hulipas in his official
capacity as a state employee (Dkt. 21, at 11).
3
15
plaintiff must rebut the defense by establishing that the official’s allegedly
wrongful conduct violated clearly established law and that genuine issues of
material fact exist regarding the reasonableness of the official’s conduct.” Id. at 654
(quoting Gates v. Texas Dep’t of Protective & Regulatory Servs., 537 F.3d 404, 419
(5th Cir. 2008)). “To negate a defense of qualified immunity and avoid summary
judgment, the plaintiff need not present ‘absolute proof,’ but must offer more than
‘mere allegations.’” Id. (quoting Manis v. Lawson, 585 F.3d 839, 843 (5th Cir.
2009)).
Hampton contends that Dr. Hulipas is liable under 42 U.S.C. § 1983 for
violating his constitutional rights under the Eighth Amendment, which prohibits
cruel and unusual punishment. Dr. Hulipas argues that he is entitled to qualified
immunity and dismissal of the complaint against him because Hampton does not
demonstrate that a violation of the Eighth Amendment occurred. To prevail on a
claim in this context a prisoner must demonstrate that a prison medical provider
has acted with “deliberate indifference” to a “serious medical need” in a manner
that constitutes “the unnecessary and wanton infliction of pain[.]” Estelle v.
Gamble, 429 U.S. 97, 104 (1976) (citation and internal quotation marks omitted);
see also Farmer v. Brennan, 511 U.S. 825, 834 (1994) (emphasizing that “only the
unnecessary and wanton infliction of pain implicates the Eighth Amendment”)
(quoting Wilson v. Seiter, 501 U.S. 294, 297 (1988)). To establish the requisite
deliberate indifference under the Eighth Amendment a prisoner must show that
the defendant was both (1) aware of facts from which an inference of an excessive
16
risk to the prisoner’s health or safety could be drawn, and (2) subjectively drew an
inference that such potential for harm existed. See Farmer, 511 U.S. at 837;
Cleveland v. Bell, 938 F.3d 672, 676 (5th Cir. 2019) (reciting the deliberateindifference standard articulated in Farmer).
The Eighth Amendment’s deliberate-indifference standard is an “extremely
high” one to meet. Domino v. Texas Dep’t of Criminal Justice, 239 F.3d 752, 756
(5th Cir. 2001). A failure to act “unaccompanied by knowledge of a significant risk
of harm” is insufficient to establish a constitutional violation. Farmer, 511 U.S. at
837-38. It is not enough to identify a significant risk that the official “should have
perceived but did not.” Id. at 838.
“Actions and decisions by officials that are
merely inept, erroneous, ineffective or negligent” do not amount to deliberate
indifference. Doe v. Dallas Indep. Sch. Dist., 153 F.3d 211, 219 (5th Cir. 1998). A
showing of deliberate indifference to medical needs requires the prisoner to submit
evidence that prison medical providers “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.” Gobert v. Caldwell, 463 F.3d 339, 346 (5th Cir. 2006) (citation and
internal quotation marks omitted). The Fifth Circuit has further emphasized
allegations of “delay in medical care can only constitute an Eighth Amendment
violation if there has been deliberate indifference that results in substantial harm.”
Rogers v. Boatright, 709 F3d 403, 410 (5th Cir. 2013) (emphasis in original)
17
(quoting Easter v. Powell, 467 F.3d 459, 464 (5th Cir. 2006)); see also Mendoza
v. Lynaugh, 989 F.2d 191, 193 (5th Cir. 1993).
Hampton contends that Dr. Hulipas violated the Eighth Amendment by not
requesting an immediate referral for an appointment with the dermatology
department when Hampton submitted his sick-call request on May 31, 2016.
Instead, Dr. Hulipas advised Hampton to wait for his scheduled appointment on
September 6, 2016, without conducting a physical examination before he
determined that Hampton could wait to see a specialist. Hampton accuses Dr.
Hulipas of “negligence” and alleges that his symptoms of sarcoidosis “aggressively
progressed” as a result of the delay (Dkt. 23, at 11).
Allegations of negligence or medical malpractice are not sufficient to
establish a violation of the Eighth Amendment and are not actionable under 42
U.S.C. § 1983. See Estelle, 429 U.S. at 106 (“[A] complaint that a physician has
been negligent in diagnosing or treating a medical condition does not state a valid
claim of medical mistreatment under the Eighth Amendment.”); Gibbs v.
Grimmette, 254 F.3d 545, 549 (5th Cir. 2001) (observing that “mere negligence in
failing to supply medical treatment” is insufficient to establish deliberate
indifference) (citations omitted); Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir.
1991) (per curiam) (stating that allegations of “[m]ere negligence, neglect or
medical malpractice” do not give rise to a cause of action under 42 U.S.C. § 1983).
The medical records do not support a claim that Dr. Hulipas was negligent
or that he intentionally disregarded a serious risk of harm when he reviewed the
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sick-call request submitted on May 31, 2016, and determined that Hampton could
wait to be seen until his scheduled appointment in September. In his sick-call
request of May 31, 2016, Hampton complained of skin lesions and other symptoms
he feared were spreading because his medication was “not working” (Dkt. 42-3, at
65). When considering that sick-call request, Dr. Hulipas was aware of Hampton’s
diagnosis of sarcoidosis of the skin without systemic involvement and the
recommended plan of treatment, which consisted of applying topical cream to the
affected area (Dkt. 42-3, at 29-30). Dr. Hulipas was also aware that Hampton was
being followed for his condition by specialists with both the ENT dermatology
departments, who had examined Hampton in the months preceding the sick-call
request submitted on May 31, 2016, and determined that Hampton’s condition was
responding to treatment with topical cream.
The medical records confirm that Hampton was seen by the dermatology
department on March 1, 2016, where the specialist observed that his symptoms
were responding to the topical cream and that he did not need to return for six
months. Hampton has alleged that he was told to notify unit providers of any “new
abnormal changes” in his condition to obtain “an earlier Dermatology visit before
September, 2016” (Dkt. 1-1, at 1). However, he provides no competent summaryjudgment evidence in support of this contention. As Dr. Bowers notes, the records
contain no instruction from the specialist that Hampton return to the dermatology
department sooner if his skin lesions flared up (Dkt. 42-3, at 6). Rather, the
treatment notes from Hampton’s examination reflect that the specialist was more
19
concerned about symptoms of heart arrhythmia, which did not recur (Dkt. 42-3, at
55). Apart from these concerns, the specialist indicated that Hampton did not need
to return to the dermatology department until September (Id.). Hampton’s sickcall request of May 31, 2016, did not include complaints of chest pain or heart
palpitations of the sort identified as a potential concern by the dermatologist who
treated Hampton on March 1, 2016 (Dkt. 42-3, at 65).
The medical records also confirm that Hampton saw a specialist with the
ENT department on April 22, 2016 (Dkt. 42-3, at 60-63). The ENT specialist noted
inflammation on the columella or bridge of Hampton’s nose and the roof of his
mouth, but also noted that Hampton did not complain of any pain from his skin
lesions, which were “resolving” or responding to the topical cream (Id. at 60).
Other than inflammation that was responding to the topical treatment, the records
from this examination reflect no signs of worsening symptoms of sarcoidosis.
The sick-call request that Hampton submitted on May 31, 2016, which
concerned skin lesions on the bridge of his nose and inside of his mouth, described
symptoms similar to those observed by the specialist on that occasion and the ENT
specialist on April 22, 2016. Medical records of care provided after May 31, 2016,
support Dr. Hulipas’s determination that Hampton could wait to keep his
scheduled appointment in September and did not need an earlier referral. In that
respect, the sick-call requests that Hampton submitted in June and July 2016,
requested refills of allergy medicine and nasal spray, but made no mention of
complications from sarcoidosis and contained no complaints of pain (Dkt. 42-3,
20
at 69). Hampton did not request for additional care from the medical department
or mention of any pain or symptoms associated with sarcoidosis until he submitted
a sick-call request on August 10, 2016 (Id. at 73).4
Hampton claims that by August 10, 2016, his nose was separating from his
face and that a lay person could have seen that he needed an emergency referral to
a specialist (Dkt. 47, at 29-30). The medical records do not support this allegation.
The medical provider who examined Hampton at the Darrington Unit on August
11, 2016, treated him for inflammation on the bridge between his nostrils, but did
not observe anything that warranted an expedited appointment with a specialist
(Dkt. 42-3, at 74-75). As a result, the provider encouraged Hampton to keep his
upcoming scheduled appointment with the dermatology department (Id.).
When Hampton was seen for his scheduled appointment with the
dermatology department on September 6, 2016, the examining physician noted a
flare of his condition that was isolated to several small nodules and skin lesions,
but observed that there were no symptoms associated with progression of
On June 5, 2016, Hampton filed a Step 1 Offender Grievance Form (#2016155022), claiming that
Dr. Hulipas had delayed his access to care for a deviated septum, acute sinus infection, and
sarcoidosis by failing to recommend an earlier appointment with the dermatology department in
response to the sick-call request that he submitted on May 31, 2016. Dkt. 42-5, at 3. On June 28,
2016, the grievance investigator confirmed that Hampton had an upcoming appointment with a
specialist and advised Hampton to submit another sick-call request if he had “any other medical
issues[.]” Id. at 4. Hampton filed a Step 2 grievance to challenge that result on July 13, 2016. Id.
at 6. The official who reviewed the Step 1 and Step 2 grievances responded on August 26, 2016,
that unit providers have “no control over scheduling” appointments for specialists at the hospital
in Galveston, but that Hampton had appointments scheduled with the dermatology department in
September and with the ENT department in October. Id. at 6. There is no evidence that Dr.
Hulipas was ever made aware of these grievances.
4
21
sarcoidosis to systemic involvement of any other organ and no signs supporting
Hampton’s claim that his nose was disfigured as the result of delay in receiving
care for his chronic condition (Id. at 81-84). Records of the follow-up examination
on September 21, 2016, confirmed no spread of the disease beyond Hampton’s skin
(Id. at 90-94).
In Dr. Bowers’ opinion, Dr. Hulipas complied with UTMB policies and
followed the appropriate standard of care when he determined on May 31, 2016,
that an expedited appointment with the dermatology department was not needed
(Dkt. 42-3, at 7). In making that determination, Dr. Hulipas confirmed that
Hampton had an appointment with a specialist at the dermatology department
that was scheduled for September. The medical records reviewed by Dr. Hulipas
reflected that Hampton had been receiving care for his chronic condition and that
the symptoms referenced in his sick-call request were substantially similar to those
observed during his examination by specialists at the dermatology department on
March 1, 2016, and the ENT department on April 22, 2016. Hampton did not
complain of any pain from the lesions or heart arrhythmia that could indicate
worsening symptoms of sarcoidosis. Viewing all of the facts in the light most
favorable to Hampton, as non-movant, he does not raise a genuine issue of
material fact demonstrating that Dr. Hulipas was aware of objective facts posing
an excessive risk to Hampton’s health when he considered the sick-call request on
May 31, 2016, or that Dr. Hulipas subjectively drew an inference that such a risk
22
existed on that occasion, but deliberately disregarded that risk by failing to order
an expedited referral to the dermatology department.
To the extent that Hampton disagrees with the determination that Dr.
Hulipas made on May 31, 2016, that he could wait to see a specialist until
September 6, 2016, a prisoner’s disagreement or difference of opinion with a
medical provider’s judgment is not sufficient to state an actionable claim under the
Eighth Amendment. See Estelle, 429 U.S. at 107 (explaining that a physician’s
decision that treatment is not indicated “is a classic example of a matter for medical
judgment”). Even if the determination was mistaken, a claim of negligence or
medical malpractice does not rise to the level of deliberate indifference or cruel and
unusual punishment in violation of the Eighth Amendment. See id. at 106; see also
Domino, 239 F.3d at 756 (“It is indisputable that an incorrect diagnosis by prison
medical personnel does not suffice to state a claim for deliberate indifference.”)
(citation omitted).
Because there is no evidence that Dr. Hulipas deliberately ignored a serious
risk of harm by failing to request an earlier appointment with a specialist on May
31, 2016, Hampton’s arguments are insufficient to raise a genuine issue of material
fact on whether a constitutional violation occurred and he has not overcome Dr.
Hulipas’ entitlement to qualified immunity. Therefore, the defendant’s motion for
summary judgment will be granted and this case will be dismissed.
23
IV.
CONCLUSION AND ORDER
Based on the foregoing, the court grants Dr. Edgar Hulipas’ motion for
summary judgment (Dkt. 42) and dismisses this case with prejudice.
The Clerk is directed to provide a copy of this memorandum opinion and
order to the parties of record.
November 6th
SIGNED at Galveston, Texas, on
, 2019.
_________________________
JEFFREY VINCENT BROWN
UNITED STATES DISTRICT JUDGE
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