UNITED STATES COURT OF APPEALS For the Fifth Circuit
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No. 99-41486 ___________________________
ANNA DOMINO; ET AL.,
Plaintiffs,
SHERENA DOMINO, As Administrator of the Estate of Antoine Domino,
Plaintiff-Appellee,
VERSUS
TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION; ET AL.,
Defendants,
SRINIVAS REDDY,
Defendant-Appellant.
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Appeal from the United States District Court For the Eastern District of Texas
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February 7, 2001
Before JOLLY and DAVIS, Circuit Judges, and RESTANI1, Judge.
DAVIS, Circuit Judge:
Anna Domino, et al. filed this § 1983 suit as administrator
of the estate of Texas Department of Corrections prisoner Antoine
Domino (Domino) against Dr. Srinivas Reddy (Reddy) and other TDC
1 Judge of the U.S. Court of International Trade, sitting by designation.
1 officials following Domino’s suicide. Plaintiff alleged that Dr.
Reddy, a prison psychiatrist, by failing to predict Domino’s
suicide, was deliberately indifferent to Domino’s medical needs and
thereby violated his Eighth Amendment right to be free from cruel
and unusual punishment. Dr. Reddy moved for summary judgment based
on qualified immunity. The magistrate judge denied Reddy’s motion
and Reddy filed this interlocutory appeal. For the reasons that
follow, we reverse.
I.
Antoine Domino committed suicide by hanging himself with a bed
sheet in his prison cell at the Coffield Unit of the Texas
Department of Criminal Justice (“TDCJ”) on August 2, 1996. Reddy
was a psychiatrist at the Coffield Unit at the time of Domino’s
suicide and had treated him on a number of occasions. On August 2,
1996, Domino asked to meet with a member of the Psychiatric Team at
Coffield. Domino met with a prison psychologist, Gayle Haynes, who
then referred Domino to Reddy for further evaluation. Reddy’s
evaluation of Domino lasted approximately five minutes.
During this meeting, Domino asked for sleeping pills and
expressed apprehension about his upcoming transfer from
administrative segregation to the general prison population. After
Reddy denied his request for sleeping pills, Domino said, “I can be
suicidal.” Reddy did not believe that Domino was a suicide risk at
that time, thinking instead that Domino’s statement was an attempt
to achieve “secondary gain,” such as sedatives or a single cell.
Domino then began banging his head on the table and Reddy had the
2 guards take Domino back to his cell. Two and a half hours later,
Domino committed suicide.
Domino had a long history of psychological problems. Even
before being incarcerated, he was hospitalized for his
psychological problems and also attempted suicide several times.
Reddy did not start working at Coffield until January 1995. Domino
was already an inmate at this time, but he was not sent to Reddy
until March 1995, when Domino was found in his cell with a homemade
noose. Reddy diagnosed Domino as suffering from recurrent major
depression and started him on Prozac, an antidepressant medication.
Reddy also placed Domino back on the active psychiatric caseload
and ordered weekly visits with a therapist.
In March 1995, Domino was transferred to Skyview Psychiatric
Hospital for six days after he made more suicide threats at
Coffield. At Skyview, Domino was diagnosed as suffering from
bipolar (manic-depressive) disorder, with depression in full
remission. In Domino’s discharge note, the Skyview physicians
wrote that some of his behavior could be characterized as
manipulative. When Domino returned to Coffield, Reddy examined him
again and prescribed Lithium to treat the bipolar disorder.
Reddy saw Domino in April 1995 for a routine follow up
appointment. Reddy continued Domino’s Lithium medication. Reddy
also kept Domino on Prozac because he continued to be depressed,
and scheduled another follow up appointment for June 1995. At this
meeting in June, Reddy continued Domino’s Prozac and Lithium
medications even though Domino refused to permit blood work that
3 was necessary to monitor his Lithium medication. Domino continued
to refuse to permit this blood work.
In August 1995, Reddy discontinued both of Domino’s
medications, stating that Domino was not compliant in taking his
medications and refused to permit the necessary blood work. Domino
did not attend his scheduled counseling sessions in September and
October 1995. In December 1995, the entire Psychiatric Team at
Coffield, including Reddy, decided to release him from the active
caseload. Their report stated that Domino was no longer expressing
psychotic symptoms and would be seen only upon request.
Domino was not examined again until June 1996, when he asked
to see a psychiatrist. A member of the Psychiatric Team met with
him, and wrote in Domino’s file that “suicidal ideation was present
but no plan [was] evident.” Domino scheduled another meeting with
a therapist in July 1996, which Domino failed to attend. Domino
next met with a member of the Psychiatric Team on the day of his
suicide, as described above.
The administrator of Domino’s estate, Sherena Domino (“Ms.
Domino”), sued Dr. Reddy and others under 42 U.S.C. § 1983. All
parties consented to a trial by a magistrate judge. More
particularly, Ms. Domino alleges that Reddy was deliberately
indifferent to Domino’s serious medical needs in violation of the
Eighth Amendment’s prohibition of cruel and unusual punishment.
Ms. Domino claims Reddy should have recognized that Domino was
suicidal and either transferred him to Skyview or taken other
measures to prevent his suicide. Reddy moved for summary judgment
4 based on qualified immunity, but the magistrate judge denied
Reddy’s motion. This interlocutory appeal followed.
II.
The parties first disagree about whether this court has
jurisdiction over this appeal. This court has stated that:
[A] public official asserting a qualified immunity defense may not seek interlocutory appellate review of a district court’s evidence sufficiency determination, [but] he or she may nevertheless argue on appeal [1] that the facts, even when viewed in the plaintiff’s favor, demonstrate that the plaintiff’s constitutional rights were not violated . . . .
Vance v. Nunnery, 137 F.3d 270, 273 (5th Cir. 1998)(citing Behrens
v. Pelletier, 516 U.S. 299, 116 S.Ct. 834 (1996). In the context
of medical care, a prison official violates the Eighth Amendment
when he acts with deliberate indifference to a prisoner’s serious
medical needs. Estelle v. Gamble, 429 U.S. 97, 105-06, 97 S.Ct.
285, 291-92 (1976). Also, “a serious medical need may exist for
psychological or psychiatric treatment, just as it may for physical
ills.” Partridge v. Two Unknown Police Officers of the City of
Houston, 791 F.2d 1182, 1187 (5th Cir. 1986). Reddy argues that
even when the disputed facts are viewed in Domino’s favor, Reddy
was not deliberately indifferent to Domino’s serious medical needs
and therefore did not violate Domino’s constitutional rights. We
agree with Reddy that this court has jurisdiction over this appeal
to decide that legal issue when the disputed facts are viewed in
Domino’s favor.
III.
Reddy first raises several challenges to the admissibility of
5 evidence used by the magistrate in deciding Reddy’s summary
judgment motion. We need not rule on these challenges, because we
hold that even when this disputed evidence is admitted against
Reddy, and the disputed facts are viewed in favor of Ms. Domino,
that Reddy did not act with deliberate indifference to Domino’s
serious medical needs.
This court has stated that the test for qualified immunity “is
quite familiar: (1) whether the plaintiff has alleged a violation
of a clearly established constitutional right; and (2) if so,
whether the defendant’s conduct was objectively unreasonable in the
light of the clearly established law at the time of the incident.”
Hare v. City of Corinth, Miss., 135 F.3d 320 (5th Cir. 1998)(en
banc). As discussed above, the first part of the qualified
immunity test - whether Domino has alleged a violation of a clearly
established constitutional right - depends on whether the summary
judgment evidence, viewed in a light favorable to Ms. Domino,
demonstrates that Reddy was deliberately indifferent to Domino’s
serious medical needs.
The Supreme Court has stated that:
We reject petitioner’s invitation to adopt an objective test for deliberate indifference. We hold instead that a prison official cannot be found liable under the Eighth Amendment for denying an inmate humane conditions of confinement 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.
Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970, 1979 (1994)
(emphasis added). Therefore, in order to prove deliberate
6 indifference, Domino was required to demonstrate that Reddy both
knew of and disregarded an excessive risk that Domino would commit
suicide.
IV.
The magistrate judge stated that Ms. Domino “presented
competent summary judgment evidence refuting defendant’s claims
that go beyond only questioning Dr. Reddy’s medical judgment . . .
.” Magistrate Judge’s Order of December 17, 1999. R. at 816.
The magistrate went on to hold that:
Reddy’s lengthy periods of absence from treating Domino and the fact that it only took him five minutes while Domino was banging his head on his desk to determine Domino was only seeking secondary gain is sufficient summary judgment evidence showing a material question of fact exists as to whether Dr. Reddy’s treatment of Domino rose to the level of deliberate indifference.
Id. R. at 818-19.
In opposing Reddy’s summary judgment motion, Ms. Domino relied
on several pieces of evidence, including the affidavit of Dr.
Koson. In his affidavit, Dr. Koson states that Reddy’s five minute
evaluation of Domino and subsequent inaction amounted to a “virtual
abandonment” of a patient who was suicidal and experiencing a
mental health crisis. Ms. Domino also presented medical records
showing that Gayle Haynes, the psychologist who met with Domino on
the day of his suicide, wrote in her report that Domino was
“extremely fearful and paranoid. He expressed suicidal ideations.
He was hopeless and depressed.” Ms. Domino also presented the
testimony of a prison guard that escorted Domino to and from his
meeting with Reddy on the day of the suicide. The guard stated
7 that the meeting between Domino and Reddy lasted only five minutes.
The guard also stated that during this meeting, Domino was banging
his head on the table loud enough for the guards outside Reddy’s
office to hear.
We disagree with the magistrate judge’s holding that Ms.
Domino has presented sufficient summary judgment evidence to show
that a material question of fact exists as to whether Reddy’s
conduct constitutes deliberate indifference.
The magistrate judge’s statement that Domino was “relatively
unexamined” from June 1995 to August 1996 is inconsistent with the
record. The record reflects that members of the psychiatric unit
were monitoring Domino’s condition. Also, the mental health
professional scheduled counseling sessions for Domino even though
Domino often did not appear for these sessions. The record
therefore reflects the critical fact that Domino was not being
ignored by Reddy and the other psychiatrists.
With respect to the brevity of Dr. Reddy’s final examination
of Domino, Gayle Haynes’ report also reflects that she spent about
five minutes evaluating Reddy. Haynes also testified that Domino
often said that “he’d kill himself, he wanted to die, but he said
that all the time. It wasn’t new.” Haynes’ testimony, taken as a
whole, does not support the conclusion that there was an obvious
risk of suicide on August 2, 1996.
Dr. Koson’s expert report would be valuable in a medical
malpractice suit to support an argument that Reddy made an
incorrect diagnosis. But Koson’s report does not support an
8 inference that Domino was so obviously suicidal that Reddy must
have known yet disregarded that risk.
Deliberate indifference is an extremely high standard to meet.
It is indisputable that an incorrect diagnosis by prison medical
personnel does not suffice to state a claim for deliberate
indifference. Johnson v. Treen, 759 F.2d 1236, 1238 (5th Cir.
1985). Rather, the plaintiff must show that the officials “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.” Id.
Furthermore, the decision whether to provide additional treatment
“is a classic example of a matter for medical judgment.” Estelle,
429 U.S. at 107. And, the “failure to alleviate a significant risk
that [the official] should have perceived, but did not” is
insufficient to show deliberate indifference. Farmer, 511 U.S. at
838.
Suicide is inherently difficult for anyone to predict,
particularly in the depressing prison setting. Collington v.
Milwaukee Co., 163 F.3d 982, 990 (7th Cir. 1998). Reddy presented
evidence that Domino had been a difficult, often uncooperative
patient and concluded that Domino was threatening suicide to obtain
secondary gain. He did not believe the threat was genuine.
Reddy’s diagnosis was wrong. But, as stated above, an incorrect
diagnosis does not amount to deliberate indifference. Johnson v.
Treen, 759 F.2d 1236, 1238 (5th Cir. 1985).
CONCLUSION
9 For the above reasons, we are satisfied that the summary
judgment evidence would not permit a reasonable jury to conclude
that Dr. Reddy knew that Domino was a serious suicide risk. The
judgment of the district court is therefore reversed and this case
is remanded to the district court for entry of judgment in favor of
Dr. Reddy.
REVERSED AND REMANDED.
10