Case: 09-30143       Document: 00511030030         Page: 1   Date Filed: 02/18/2010




             IN THE UNITED STATES COURT OF APPEALS
                      FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                      Fifth Circuit

                                                   FILED
                                                                          February 18, 2010
                                       No. 09-30143
                                     Summary Calendar                  Charles R. Fulbruge III
                                                                               Clerk



KEITH THOMPSON,
                                                    Plaintiff-Appellant

v.

ANTHONY MCCOY, EMT,

                                                    Defendant-Appellee


                      Appeal from the United States District Court
                          for the Middle District of Louisiana
                                USDC No. 3:08-CV-291


Before GARWOOD, DENNIS and ELROD, Circuit Judges.
PER CURIAM:*
        Keith Thompson, Louisiana prisoner # 109223, appeals the district court’s
dismissal on grounds of qualified immunity of his pro se civil rights complaint
alleging that defendant McCoy refused Thompson treatment for an acute asthma
attack. McCoy moved to dismiss the complaint pursuant to Fed. R. Civ. P.
12(b)(6) or, alternatively, to compel a Shultea 1 reply. Thompson argued that
dismissal prior to discovery was improper because his medical records would

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
        1
            Shultea v. Wood, 

(5th Cir. 1995).
   Case: 09-30143     Document: 00511030030 Page: 2           Date Filed: 02/18/2010
                                  No. 09-30143

document McCoy’s awareness of the severity of Thompson’s asthmatic condition;
his administrative records would show that McCoy had refused to treat
Thompson on other occasions when other medical personnel deemed Thompson’s
condition emergent; and discrepancies between Thompson’s medical records and
McCoy’s admissions during the administrative remedy process would show that
McCoy failed to document his examination of Thompson according to prison
policy.2 Notwithstanding Thompson’s arguments, the district court determined
that McCoy was entitled to qualified immunity and dismissed the complaint.
      We have held that “evidence showing that a substantial risk of [asthma]
attacks was longstanding, pervasive, well-documented, or expressly noted by
prison officials in the past, and the circumstances suggest that the defendant-
official being sued had been exposed to information concerning the risk and thus
‘must have known’ about it’” could be sufficient to support a finding of a
constitutional violation. Olabisiomotosho v. City of Houston, 

, 528
(1999) (emphasis in original).
      In light of Thompson’s contention in the district court that his medical and
administrative records would establish that the severity of his asthmatic
condition is well documented; that McCoy was aware that he suffers from acute
asthma; that McCoy has previously refused to treat Thompson for asthma
attacks that other emergency medical technicians concluded warranted
hospitalization; that three other Angola inmates have died from untreated
asthma attacks; and that there are discrepancies between Thompson’s medical
records and McCoy’s admissions in the administrative proceedings which
suggest that McCoy may have deliberately withheld treatment from Thompson,
we conclude that the district court erred in dismissing the complaint on grounds




      2
        As part of initial mandatory discovery, the magistrate judge had ordered McCoy to
provide Thompson “all medical records, Warden’s unusual occurrence reports and all other
documents pertinent to the issues in this case.” McCoy never complied with this order.

                                           2
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                                No. 09-30143

of qualified immunity without allowing Thompson an opportunity to establish
his allegations through discovery. See 

; see also,
Easter v. Powell, 

, 464-65 (5th Cir. 2006). Accordingly, we vacate
and remand for proceedings consistent with this opinion.
      VACATED AND REMANDED.




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