MEMORANDUM OPINION AND ORDER

PAUL STICKNEY, Magistrate Judge

Defendants Paul Mills, D.O. ("Dr. Mills"); Janet Hicks, LVN ("Nurse Hicks"); and Cynthia Huffman, LVN ("Nurse Huffman"); seek summary judgment in this prisoner civil rights case. Plaintiff, Ron E. Weesner ("Plaintiff"), filed a response, and Defendants filed a reply.

I.

Plaintiff sues Dr. Mills, Nurse Huffman, and Nurse Hicks, pursuant to 42 U.S.C. § 1983. He claims that Defendants, medical personnel at the Hutchins State Jail, rendered inadequate medical care to him for fluid in his lungs and a pleural effusion. He also contends that they delayed too long before they sent him to the hospital emergency room. He alleges that this resulted in pain, suffering, and permanent lung damage.

Threshold Matters Plaintiff's Objections to Statements in Defendants' Affidavits

Plaintiff contends that various statements contained in Defendants' affidavits are conclusory and not based on personal knowledge. He argues that they constitute improper expert opinions by unqualified witnesses. He also objects to the affidavit of Defendants' expert witness Dr. Barry Raff. Plaintiff's objections are denied as moot because none of the evidence objected to by Plaintiff is necessary to the disposition of the summary judgment.

Defendants' Motion to Strike Hearsay in Plaintiff's Affidavits

Defendant filed a motion to strike as inadmissible hearsay (and/or hearsay upon hearsay) certain testimony submitted in support of Plaintiff's response to Defendants' motion for summary judgment. The affidavit of Joan Weesner, Plaintiff's mother, states that she had the opportunity to discuss her son's condition with the emergency room doctor, and that he made three statements to her. First, she claims the doctor told her that if her son had gone to sleep the night of February 3, 1999, he might have died. Next, she contends the doctor told her that her son's lung probably were filled with fluid at least eight or nine days before his lung collapsed. Finally, she claims that he told her the medical care provided to Plaintiff at the Hutchins Jail Unit was incompetent and insufficient.

Plaintiff responds to the motion to strike the testimony with the argument that the statements of the emergency room doctor constitute "present sense impressions" of the doctor. FED. R. EVID. 803(1) provides an exception to the hearsay rule for statements "describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter." Rule 801 defines "declarant" as "a person who makes a statement." "Hearsay" is "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." The underlying theory of "the present sense impression" exception is that the substantial contemporaneity of the event and statement negate the likelihood of deliberate or conscious misrepresentation by the declarant. In other words, the statements are admissible if the declarant had no time to consciously manipulate the truth. In this case, Plaintiff's mother, an interested witness, is the declarant. The Court finds that the mother's recount of what the doctor allegedly told her, offered for the truth of the doctor's opinions, lacks the circumstantial guarantees of truthfulness contemplated by the exception. The Court finds that the mother's affidavit is not competent summary judgment evidence and constitutes inadmissible hearsay. The mother's testimony is not a present sense impression excepted by Rule 803(1).

Additionally, Defendants seek to strike Plaintiff's unsworn declarations that (1) the nurse told him that the doctor told her he was too busy to see Plaintiff on January 27, 1999, and (2) the nurse told him to put in a sick call request to see the doctor, which could take up to thirty days. Plaintiff claims the nurse's statements are admissible as statements against interest. The nurse's statements to Plaintiff about what Dr. Mills allegedly said are neither statements against the nurse's interest nor statements against Dr. Mills' interest. They are, in fact, inadmissible hearsay. Moreover, Dr. Mills examined Plaintiff's chart and ordered an appointment within six days. The nurse's statement that Plaintiff would have to wait thirty days for an appointment is irrelevant.

The testimony Defendants seek to strike is not competent summary judgment evidence. The Court will not consider the challenged statements. Defendants' Opposed Motion to Strike is granted.

Undisputed Facts

On January 4, 1999, Plaintiff went to the jail medical clinic. His primary complaint was pain in his left heel from a motorcycle accident in 1987. Plaintiff also complained of chest pains, pain in his left side, and pleurisy. Dr. Mills examined Plaintiff. After listening for lung sounds, Dr. Mills found that Plaintiff's lungs were clear. Dr. Mills ordered X-rays of Plaintiff's heel and also of his chest. Dr. Mills determined from the chest X-ray that Plaintiff's lungs were normal. Additionally, a radiologist read the X-ray film of Plaintiff's chest and found that his lungs were well aerated with no active infiltrate identified. Dr. Mills prescribed foot cream and Ibuprofen. When Plaintiff indicated he may have been exposed to tuberculosis in 1998, the doctor ordered a repeat of a tuberculosis test. He told Plaintiff to make another appointment if he did not improve.

The pain did not subside, and on January 27, 1999, Plaintiff returned to the clinic pursuant to a sick call request. Nurse Huffman assessed Plaintiff's condition and determined that he did not need emergency treatment. She told Plaintiff to put in a request to see the doctor. Dr. Mills reviewed Plaintiff's chart on January 28, 1999. The medical records of that date indicate that Dr. Mills ordered that an appointment be scheduled for Plaintiff to see him within six days. The records reflect that on February 1, 1999, an appointment for Plaintiff to be examined by Dr. Mills was scheduled for February 3, 1999.

Plaintiff's mother contacted the Hutchins State Jail on February 2, 1999, and talked to Nurse Hicks, requesting that her son be examined immediately. Nurse Hicks called Plaintiff into the clinic on that date. He complained of shortness of breath, coughing, difficulty sleeping, tightness in his chest for the past two weeks, and pain in his left side for a month. Nurse Hicks ran an EKG on Plaintiff and performed an upper respiratory assessment. Dr. Mills examined Plaintiff the next day, February 3, 1999.

Dr, Mills' examination revealed decreased left lung sounds, and wheezing with a cough and low peak breath flow. Dr. Mills ordered an X-ray and determined from it that Plaintiff had a left lobar consolidation. Dr. Mills arranged for Plaintiff to be transferred to the emergency room at Mesquite Community Hospital.

The emergency room physician found that Plaintiff's left lung was completely filled with fluid and that he had a pleural effusion. He was admitted to the hospital and treated.

II.

Summary judgment is proper when there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A dispute is "genuine" if the issue could be resolved in favor of either party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); Thurman v. Sears, Roebuck Co., 952 F.2d 128, 131 (5th Cir. 1992). A fact is "material" if it might reasonably affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); In re Gleasman, 933 F.2d 1277, 1281 (5th Cir. 1991). A movant who does not have the burden of proof at trial must point to the absence of a genuine fact issue. Tubacex, Inc. v. M/V Risan, 45 F.3d 951, 954 (5th Cir. 1995). The burden then shifts to the non-movant to show that summary judgment is not proper. Duckett v. City of Cedar Park, 950 F.2d 272, 276 (5th Cir. 1992). The parties may satisfy their respective burdens by tendering depositions, affidavits, and other competent evidence. Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th Cir. 1992). However, the non-movant must go beyond the pleadings and designate specific facts in the record which show that there is a genuine issue for trial. See Celotex, 477 U.S. at 322; Topalian, 954 F.2d at 1131. All evidence must be viewed in the light most favorable to the party opposing the motion. Rosado v. Deters, 5 F.3d 119, 122 (5th Cir. 1993).

III.

Plaintiff alleges that he developed a left pleural effusion some time before February 3, 1999, and that Defendants violated his civil rights by failing to diagnose or treat this condition until that date. Plaintiff claims that this denial of treatment amounted to deliberate indifference to his serious medical needs in violation of the United States Constitution. Defendants seek summary judgment on the grounds of qualified immunity. Jail officials are immune from suit for discretionary acts performed in good faith while acting within the scope of their authority unless their conduct violates "clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The familiar two-part test for qualified immunity asks: "(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, 135 F.3d 320, 325 (5th Cir. 1998) (en banc).

The Court will now address the first part of the qualified immunity test — whether the summary judgment evidence, viewed in a light favorable to Plaintiff, shows that Defendants were deliberately indifferent to Plaintiff's serious medical needs. The United States Supreme Court has rejected the adoption of an objective test for deliberate indifference. Farmer v. Brennan, 511 U.S. 825, 837 (1994). Instead, 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. Id. (emphasis added); see also Lawson v. Dallas County, 286 F.3d 257, 262 (5th Cir. 2002). Accordingly, Plaintiff must demonstrate that one or more of the defendants both knew of and disregarded an excessive risk to his serious medical needs. Deliberate indifference is "an extremely high standard." Domino v. Tex. Dep't. Of Criminal Justice, 239 F.3d 752, 756 (5th Cir. 2001). It encompasses "only unnecessary and wanton infliction of pain repugnant to the conscience of mankind." McCormick v. Stalder, 105 F.3d 1059, 1061 (1997). A delay in medical care is actionable only "if there has been deliberate indifference, which results in substantial harm." Mendoza v. Lynaugh, 989 F.2d 191, 195 (5th Cir. 1993). To apply the Farmer test, each individual's subjective deliberate indifference must be examined separately. Lawson, 286 F.3d at 262-63. See Stewart v. Murphy, 174 F.3d 530, 537 (5th Cir. 1999).

Dr. Mills

The Court will now consider whether a genuine issue of material fact exists with respect to whether Dr. Mills had actual knowledge of a serious risk to Plaintiff's health, but consciously disregarded that risk. Plaintiff argues that Dr. Mills failed to disclose in his employment application the fact that medical malpractice cases have been filed against him. Medical malpractice claims against a doctor are based upon a different standard of care. A civil rights action does not arise from negligent or erroneous medical treatment or judgment. Estelle v. Gamble, 429 U.S. 97, 107 (1976); see Graves v. Hampton, 1 F.3d 315, 319 (5th Cir. 1993). Neither the fact that malpractice claims had been filed against Dr. Mills nor the fact that he failed to inform his employer of that fact is probative of whether Dr. Mills had actual knowledge of a serious risk to Plaintiff's health. Plaintiff's argument that the doctor's failure to disclose this information when he was hired amounts to deliberate indifference with respect to all Hutchins patients, including Weesner, also fails. A different standard applies when challenged conduct relates to an informal policy or a custom of behavior among government employees. In such cases, the policymaker is not liable for a single constitutional violation under § 1983. City of Oklahoma City v. Tuttle, 471 U.S. 808, 820-24 (1985). Rather, for a governmental entity to be liable for the negligence or gross negligence of its subordinates, the plaintiff must establish a pattern of similar incidents in which citizens were injured or endangered by intentional or negligent misconduct and/or that serious incompetence or misbehavior was general or widespread. Languirand v. Hayden, 717 F.2d 220, 227-28 (5th Cir. 1983). The critical inquiry is whether the governing body or official policymaker had actual or constructive knowledge of persistent and widespread violations of constitutional rights. See Bennett v. City of Slidell, 728 F.2d 762, 768 (5th Cir. 1984). Plaintiff's evidence regarding the unrelated filing of three medical malpractice cases against Dr. Mills does not establish a "pattern or practice" of civil rights violations. Moreover, Plaintiff did not plead a "pattern or practice" claim against the government agency or allege negligent hiring or negligent supervision.

Plaintiff claims that Dr. Mills admitted that (1) LVNs were allowed to perform duties that required them to undertake diagnostic procedures that they were generally not qualified to perform and (2) that he allowed both Nurse Hicks and Nurse Huffman to perform major assessments. The Court will assume, arguendo, that this is a correct representation of Dr. Mills' deposition testimony. Again, this is not a "pattern or practice" civil rights case. Additionally, the court is unable to infer from the statements that Dr. Mills had actual knowledge of a serious risk to Plaintiff's health between January 4, 1999, and February 3, 1999, and that he consciously disregarded that risk. Plaintiff also submits as evidence of deliberate indifference the proposition that Dr. Mills did not seem to think it was important to learn the protocols that nurses were to follow, or to learn which tasks nurses should or should not perform. This argument fails as well. Similarly, Plaintiff cites Dr. Mills' inability to recall exact procedures from the nursing protocol as evidence of his alleged deliberate indifference. For the same reasons, Dr. Mills' failure to recall nursing protocols at a deposition is not probative of whether he was deliberately indifferent to Plaintiff's serious medical needs on the dates in question.

Plaintiff argues that Dr. Mills testified in his deposition that a nurse should call him if a patient had chest pains and was an "already known cardiac patient." There is no evidence that Plaintiff was an "already known cardiac patient." The fact that the nurse did not phone Dr. Mills on February 2, 1999, does not demonstrate that Dr. Mills was deliberately indifferent to Plaintiff's serious medical needs.

Plaintiff argues that the fact that Plaintiff had complained of pleurisy on January 4, 1999, discredits Dr. Mills' statement that "there were no objective medical signs of pneumonia" on January 27, 1999. Plaintiff has presented no competent medical testimony that a patient's subjective complaint of pleurisy on the same day that a normal x-ray was taken should have alerted Dr. Mills to a serious medical risk three weeks later. In fact, the medical records show that on January 27, 1999, Plaintiff's lungs were still clear. (Defs.' Amend. App., D-6 at 344.) On January 28, 1999, Dr. Mills reviewed this note in the chart and an appointment was set for six days later. The legal conclusion of deliberate indifference must rest on facts clearly evidencing wanton actions on the part of a defendant. Taking the facts most favorably to Plaintiff, the Court is unable to draw that legal conclusion.

Plaintiff argues that his complaints of continued and elevated pain on January 27, 1999, "should have put Dr. Mills on notice" that new X-rays were in order. Plaintiff confuses what Dr. Mills "should have known" with his actual knowledge. The correct legal standard is not whether the Defendants "knew or should have known," but whether they had gained actual knowledge of the substantial risk of fluid on Plaintiff's lungs and responded with deliberate indifference. See Hare, 135 F.3d at 324. Although Plaintiff claims that he needed more immediate attention from the doctor, such claims do not give rise to a cause of action under 42 U.S.C. § 1983. See, e.g., Walker v. Butler, 967 F.2d 176, 178 (5th Cir. 1992) (holding that a medic's decision to make an inmate walk to the hospital was not deliberately indifferent even though a later diagnosis revealed a broken ankle). As previously noted, brief delays in treatment, standing alone, do not give rise to a civil rights violation. See Crowley v. Hedgepeth, 109 F.3d 500, 502 (8th Cir. 1997) (lack of medical evidence that delay in treatment adversely affected inmate precludes claim of deliberate indifference); Olson v. Finney, 885 F. Supp. 1480, 1483-84 (D. Kan. 1995) (delay in ordering X-rays for injured tailbone did not constitute deliberate indifference where prisoner received pain medication and recommended course of treatment did not change based on results of X-rays). Plaintiff has presented no medical evidence that his lungs were not clear on January 27, 1999, and no evidence that it would inevitably follow from Dr. Mills' not ordering an X-ray on that date that Plaintiff would be subjected to a serious risk of harm. In sum, Plaintiff has not pointed to competent summary judgment evidence that raises a genuine issue of fact with respect to whether Dr. Mills was deliberately indifferent to his serious medical needs at any time between January 4, 1999, and February 3, 1999.

Nurse Huffman

The Court will now consider whether a genuine issue of material fact exists with respect to whether Nurse Huffman had actual knowledge of a serious risk to Plaintiff's health, but consciously disregarded that risk. Plaintiff contends that Nurse Huffman could not give an accurate description of the difference between an assessment and a diagnosis. As the Court has explained, "pattern or practice" evidence is not relevant in this proceeding. Plaintiff alleges that Nurse Huffman did not attempt to contact a doctor or a RN on January 27, 1999, when she examined Plaintiff. Nurse Huffman found the objective tests she performed to be within normal limits and showed Plaintiff's chart to Dr. Mills. Dr. Mills determined that no emergency existed and ordered an appointment to be set within six days. Plaintiff alleges that Nurse Huffman stated she was qualified to make a verbal air analysis but could not state how or when she had learned to make such an analysis. Nurse Huffman's failure to remember where she learned a procedure is not relevant to prove she was deliberately indifferent on January 27, 1999. Plaintiff states that Nurse Huffman was not qualified to read a chest X-ray. The chest X-ray in question had a radiologist's report showing it was normal. Finally, Plaintiff states that Nurse Huffman took it upon herself to diagnose Plaintiff's condition on January 27, 1999, that she knew she was not qualified to diagnose his condition, and that she disregarded the serious risk of harm to him that doing so would pose. Plaintiff's conclusory allegations in this regard do not raise a genuine issue of fact. Further, Plaintiff's allegations are refuted by the record. Nurse Huffman performed objective tests. Dr. Mills reviewed the chart. Even if Nurse Huffman's actions might amount to negligence or even gross negligence, they do not show a civil rights violation. Plaintiff has presented no medical evidence that Nurse Huffman knew Plaintiff's condition was serious on January 27, 1999, and that she deliberately disregarded a serious risk to his health.

Nurse Hicks

Summary

The competent summary judgment evidence, viewed in the light most favorable to Plaintiff, does not rise to the level of a constitutional violation. See Johnson v. Treen, 759 F.2d 1236, 1237 (5th Cir. 1985). In this case, the evidence of sick call requests, assessments, examinations, and X-rays rebut Plaintiff's claim of deliberate indifference. See Banuelos v. McFarland, 41 F.3d 232, 235 (5th Cir. 1995). See also Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991); Mendoza v. Lynaugh, 989 F.2d 191, 195 (5th Cir. 1993). Federal courts will not inquire into the adequacy or sufficiency of medical care of state inmates unless prison officials appear to have abused the broad discretion which they possess in this area. Haskew v. Wainwright, 429 F.2d 525, 526 (5th Cir. 1970). No abuse of discretion has been identified. Further, the extremely high subjective standard of deliberate indifference has not been met in this case. Plaintiff has presented no competent summary judgment evidence from which the Court can infer that any of the defendants in this case knew that Plaintiff had a serious emergency medical need and that he or she recklessly disregarded it. Further, no competent summary judgment evidence demonstrates a wanton omission on the part of any defendant during the period in question. This terminates the qualified immunity analysis because Plaintiff has not proved a constitutional violation.

IV.

Defendants seek dismissal of the case for Plaintiff's failure to exhaust his administrative remedies. The dismissal motion is denied without prejudice as moot in light of the disposition of the summary judgment motion.

Conclusion

There are no genuine issues of material fact. Defendants are entitled to judgment as a matter of law based upon qualified immunity. Accordingly, Defendants' "Motion for Summary Judgment," filed November 4, 2003, is Granted. Defendants' "Opposed Motion to Strike," filed March 11, 2004, is Granted. All other relief is denied without prejudice as moot.

SO ORDERED.