Austin v. Dallas County

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
F I L E D
October 5, 2004
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 04-10191
MICHAEL AUSTIN,
Plaintiff-Appellee,
versus
DALLAS COUNTY, ET AL.,
Defendants,
KATHRYN FLANGIN, M.D.,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:03-CV-0308-H
Before JONES, BARKSDALE and PRADO, Circuit Judges.
PER CURIAM:*
Michael Austin (“Austin”) alleges that Kathryn Flangin,
M.D. (“Dr. Flangin”), a physician for the North Tower of the Dallas
County Jail, denied Austin medical care during his incarceration in
violation of his Eighth Amendment right against cruel and unusual
punishment. Dr. Flangin has filed an interlocutory appeal to
assert the defense of qualified immunity.

-- 1 of 4 --

2
Although Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct.
2806 (1985), permits immunity appeals under the collateral order
doctrine, the Supreme Court held in Johnson v. Jones, 515 U.S. 304,
115 S.Ct. 2151 (1995), that defendants may urge only legal issues
on such appeals. See Kinney v. Weaver, 367 F.3d 337 (5th Cir.
2004) (en banc). In other words, this court has jurisdiction to
review the purely legal question whether a given course of conduct
would be objectively unreasonable in light of clearly established
law. This court does not have jurisdiction to hear an
interlocutory appeal reviewing the district court’s assessments
regarding the sufficiency of the evidence – that is, the question
whether there is enough evidence in the record for a jury to
conclude that certain facts are true. Id. at 347-48.
This appeal does not present any distinctly legal issue
or seek protection from the uncertainty of evolving legal norms,
the genesis of the doctrine of qualified immunity. Although she
casts her argument as a legal one (stating that “[n]o evidence
established a response or conduct by Dr. Flangin herself that could
be characterized, as a matter of law, as deliberately
indifferent”), a reading of Dr. Flangin’s brief shows that she is
denying that she committed the acts of which she is accused by
Austin. Dr. Flangin disputes the sufficiency of Austin’s evidence
on several different points:
1. Need for surgery. The district court found that Austin
presented competent evidence to support the conclusion that

-- 2 of 4 --

3
Dr. Flangin knew about Austin’s need for the treatment of his
injured hand as of February 9, 2001 (when she reviewed Austin’s
medical chart), and that Dr. Flangin knowingly permitted this
ongoing medical need to go unaddressed. Austin v. Dallas County,
2004 WL 258218, at *3 (N.D. Tex.) In her brief, Dr. Flangin claims
that the evidence shows she did not have knowledge of Austin’s need
for medical attention until she reviewed Austin’s “kite” (medical
request form) on February 26, 2001, and that the kite did not give
her reason to believe Austin needed immediate attention.
2. Responsibility for dispensing pain medication. The
district court found that Austin presented competent evidence
showing that Dr. Flangin had a role in failing to provide Austin
with pain medication for days at a time following Austin’s April
2001 amputations at the Parkland Memorial Hospital Hand Clinic.
Id. Dr. Flangin disputes this, claiming that the evidence shows
Austin was under the care of the Parkland physicians following
surgery, and that she was not responsible for providing Austin with
medication.
3. Responsibility for providing occupational therapy.
According to the district court, Austin presented enough evidence
to support the conclusion that Dr. Flangin caused or contributed to
a delay of nearly four months in providing Austin with the
prescribed occupational therapy. Id. Dr. Flangin disputes the
district court’s finding, asserting instead that Austin was under
the care of the Parkland physicians, and that Austin’s failure to

-- 3 of 4 --

1 Because Dr. Flangin does not make this purely legal argument that the
conduct Austin alleges is legally insufficient to rise to the level of a
constitutional violation, we pass no judgment on this issue.
4
receive the proscribed occupational therapy was not due to any
fault of hers.
In her brief, Dr. Flangin does not deny the legal
conclusion that she lacks immunity if, as Austin contends, she
possessed actual knowledge of Austin’s medical needs beginning
February 9, 2001, and was responsible for providing Austin with
pain medication and occupational therapy.1 Instead, she disputes
the district court’s factual conclusions that the summary judgment
record raised a genuine issue of fact concerning these aspects of
Flangin’s knowledge and role in Austin’s treatment. This court
lacks jurisdiction over an interlocutory appeal of this portion of
the district court’s summary judgment order.
The appeal is DISMISSED.

-- 4 of 4 --