Spikes v. McVea

12 F.4th 833

Opinion

Case: 19-30019 Document: 00516013553 Page: 1 Date Filed: 09/14/2021

United States Court of Appeals for the Fifth Circuit

United States Court of Appeals Fifth Circuit

FILED

September 14, 2021

No. 19-30019 Lyle W. Cayce Clerk

Larce Spikes,

Plaintiff—Appellee,

versus

Casey McVea, Doctor; Lesley Wheat, Nurse; Paula Stringer, Nurse; Wendy Seal, Nurse; R. Bowman, Nurse,

Defendants—Appellants.

Appeal from the United States District Court for the Eastern District of Louisiana USDC No. 2:17-CV-8164

Before Higginbotham, Smith, and Dennis, Circuit Judges. Per Curiam:

Treating the petition for rehearing en banc as a petition for panel rehearing, 1 the petition for panel rehearing is GRANTED. In this suit under the Eighth Amendment against Dr. McVea and prison nurses working at his direction, the recent death of the doctor 2 makes it all the more important that

1

5th Cir. R. 35 I.O.P.

2

The Suggestion of Death was filed with this Court on August 20, 2021, after the filing of the panel opinion.

Case: 19-30019 Document: 00516013553 Page: 2 Date Filed: 09/14/2021

No. 19-30019

the inquiry of qualified immunity not rest on the collective action of the medical staff, but on the role of each participant. 3 Accordingly, we GRANT the petition for rehearing, VACATE the judgment below, and REMAND this case to the district court for further proceedings.

3

See Taylor v. Riojas, 141 S. Ct. 52, 54 (2020); Dyer v. Houston, 964 F.3d 374, 382 n.6 (5th Cir. 2020) (noting that, for qualified immunity, the Court must assess each officer’s individual conduct).