SPIKES v. MCVEA (2021)

United States Court of Appeals, Fifth Circuit.

Larce SPIKES, Plaintiff—Appellee, v. Casey MCVEA, Doctor; Lesley Wheat, Nurse; Paula Stringer, Nurse; Wendy Seal, Nurse; R. Bowman, Nurse, Defendants—Appellants.

No. 19-30019

Decided: September 14, 2021

Before Higginbotham, Smith, and Dennis, Circuit Judges.

Elizabeth Cumming, Hannah Lommers-Johnson, Roderick & Solange MacArthur Justice Center, New Orleans, LA, for Plaintiff—Appellee. Andre' Charles Castaing, Louisiana Department of Justice, Litigation Division, Baton Rouge, LA, William David Coffey, Assistant Attorney General, Louisiana Department of Justice, Litigation Division, Angela Jacketti O'Brien, Office of the Attorney General for the State of Louisiana, New Orleans, LA, for Defendants—Appellants.

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 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.

FOOTNOTES

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.

3. See Taylor v. Riojas, ––– U.S. ––––, 141 S. Ct. 52, 54, 208 L.Ed.2d 164 (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).

Per Curiam:

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