Thayer v. Adams

364 F. App'x 883
CourtCourt of Appeals for the Fifth Circuit
DecidedFebruary 4, 2010
Docket08-20817
StatusUnpublished
Cited by9 cases

This text of 364 F. App'x 883 (Thayer v. Adams) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Thayer v. Adams, 364 F. App'x 883 (5th Cir. 2010).

Opinion

PER CURIAM: *

Plaintiff William James Thayer appeals the district court’s entry of summary judgment in favor of Defendants Mary Adams, Kristi Flisowski and Margie Gonzales on Thayer’s deliberate indifference claim arising under 42 U.S.C. § 1983. Thayer is an inmate in the custody of the Texas Department of Criminal Justice (TDCJ). He alleges that defendants inflicted wanton and unjustifiable pain and suffering upon him by failing to respond to his serious medical needs in violation of the Eighth Amendment to the U.S. Constitution. For the reasons stated herein, we affirm the district court’s decision.

I. FACTS AND PROCEDURE

Thayer’s Allegations

Thayer was scheduled to have knee replacement surgery on March 28, 2005, while in custody of TDCJ. The procedure was halted and Thayer was discharged from the University of Texas Medical Branch (UTMB) because he had an ana-phylactic response to a medication. Thayer received 23 staples in his knee and was *885 remanded to the Ellis Unit of TDCJ. Upon arriving at Ellis Unit on the evening of March 28, Thayer was assigned to a cell up a flight of stairs and was given no blankets or sheets. He required the assistance of other inmates to reach his cell because he could not climb stairs alone. He could not sleep because he was cold and in pain. The next day, March 29, Thayer went to the infirmary for “emergency treatment,” but stated that he was denied treatment by defendants Flisowski and Gonzales, who were nurses employed by TDCJ. Thayer was able to receive pain medication from the pill window. Thayer alleged, however, that he received inadequate treatment or no treatment at all between March 29, 2005, and April 2, 2005. He says his pain medication was discontinued at the direction of defendant Adams. He sued, alleging that Flisowski, Gonzales, and Adams acted with deliberate indifference to his pain and legitimate medical needs. Thayer sought declaratory and injunctive relief, as well as punitive damages. He moved for appointment of counsel, which the district court denied.

The Attorney General advised the court that defendants Flisowski and Gonzales were no longer employed by UTMB. Adams answered, denied wrongdoing, and asserted her entitlement to official immunity, immunity under the Eleventh Amendment, and qualified immunity. Adams moved for summary judgment, stating that she was not the nurse manager of the Ellis Unit while Thayer was housed there. Rather, she was manager of the Estelle Unit, and had no responsibility over the Ellis Unit until she was transferred there on August 1, 2005. She also stated that she never received Thayer’s emergency grievances. Adams submitted personnel records and a sworn affidavit in support of these assertions.

Declarations by Thayer and Other Inmates

In response to Adams’s motion, Thayer filed a declaration reiterating the assertions from his complaint. Thayer stated that, on the morning of March 29, 2005, he presented himself, with the help of fellow inmates, to the infirmary, where Flisowski and Gonzales were working. After Thayer explained to them his condition, including his return from the hospital, his cell assignment, and “being in severe pain,” both said that they were too busy to help, even though “all they were doing was sitting at the desk talking.” Thayer then filed emergency grievances. The next day, March 30, 2005, Thayer went to the pill window, “and was told [his] medication had been discontinued.” He went to the infirmary, where Flisowski told him Adams had ordered his medication discontinued. Thayer explained his situation once more to Flisowski and asked her to look into his file. She did so, but said she could do nothing for him at that time. Thayer next states: “I was helped back to my cell which I stayed in because I couldn’t get around and the pain I was in was so severe. Inmates gave me food because I couldn’t make it to the chow hall.” Finally, Thayer was examined on April 2, 2005, by a nurse Connell, who is not a defendant. Connell called a doctor, who reinstated Thayer’s pain medication. Thayer’s dressing was changed for the first time on April 2, 2005. He had swelling and bruises on his leg, but no infection.

Thayer also submitted the declaration of Marc Ashbrook, a fellow TDCJ inmate, who repeated many of Thayer’s assertions. Ashbrook said that on March 29, Flisowski and Gonzales were too busy to help Thayer, even though both were just “sitting at the desk at the infirmary.” On March 30, Ashbrook overheard Flisowski tell Thayer that Adams had discontinued Thayer’s *886 pain medication. Ashbrook stated: “Plaintiff was in so much pain he couldn’t understand why they, the nurses and medical staff, were doing this to him when it was so obvious that he needed medical attention.” Thayer also submitted medical records to the district court, which confirmed that he was scheduled for a knee replacement at UTMB. The operation was halted because Thayer had a “possible anaphylactic reaction” and became “severely hypo-tensive” after he was placed under general anesthesia and an incision was made on his leg. The records also show that Thayer was prescribed Tylenol with Codeine when he was discharged from UTMB. Notes from his April 2, 2005, examination reflect his assertion that “pain medication was discontinued and motrin ordered.” The records also show that Thayer’s surgery was rescheduled for the following week, and reflect his assertion that he “ha[d] been told not to take anything with motrin and aspirin prior to surgery.” His “[i]ncision line [was] clean and dry,” but he had swelling and bruises from the knee to the anide.

The district court considered Adams’s motion and Thayer’s response, and held that summary judgment was inappropriate. The court concluded that “a fact issue remains about whether Nurse Adams had any personal involvement in the discontinuation of Thayer’s pain medication or in the supervision of others who were charged with providing him with medical care.” The court also noted that Flisowski and Gonzales had not been served and that neither had filed an answer. Because they no longer worked for TDCJ, these defendants could not be represented by the Attorney General without their express consent. The court stated it would order service on Flisowski and Gonzales separately. Finally, the court allowed Thayer to correspond with three inmates who had witnessed Thayer’s treatment for the purpose of obtaining a declaration or affidavit.

Thayer then filed a request for production of documents. He asked to be provided with copies of grievances, complaints, and related documents filed against the defendants, their work histories, policies, a health care manual, “[a]ny and all orders Medical Supervisor Mary Adams made during her employment with UTMB & TDCJ,” the grievance manual, and several other similar documents. Adams opposed the motion. The district court denied the motion because Thayer had not requested leave to conduct additional discovery, because he had not shown how his requests related to his claims, and because Adams had asserted the defense of qualified immunity.

Flisowski answered. She denied refusing to treat Thayer, or that she had any role in discontinuing his pain medication.

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364 F. App'x 883, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thayer-v-adams-ca5-2010.