Montalvo v. Williams ( 2004 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-41340
Summary Calendar
SALOMON MONTALVO, ET AL
Plaintiffs
SALOMON MONTALVO
Plaintiff - Appellant
versus
JUDGE LEE WILLIAMS, Etc., ET AL
Defendants
BILL SKINNER, Sheriff of Wood County, TX; BILL COHEN, Jail
Administrator at Wood County, TX; TAMMY ROGERS, Wood County Jailer;
NADRA LOUDERMAN, Jailer at Wood County; MIKE ZACHERY, Wood County,
TX Jailer; THOMAS FERGUSON, Wood County, TX Jailer; MARK MILLER,
Wood County, TX Jailer; ROD HASHAWAY, Wood County, TX Jailer;
SHELLY ADAMS, Wood County, TX Jailer; TOMMY BARRETT
Defendants-Appellees
Appeal from the United States District Court
For the Eastern District of Texas
USDC No. 6:96CV 573
November 20, 1998
Before HIGGINBOTHAM, JONES, AND DENNIS, Circuit Judges.
PER CURIAM:*
*
Local rule 47.5 provides: “The publication of opinions that
have no precedential value and merely decide particular cases on
the basis of well-settled principles of law imposes needless
expense on the public and burdens on the legal profession.”
Pursuant to that Rule, the Court has determined that this opinion
Salomon Montalvo, a Texas prisoner, filed a civil rights
lawsuit against various officials at the Wood County Jail.
Montalvo’s complaint included three claims pursuant to 42 U.S.C. §
1983. First, Montalvo, a diabetic, alleged that prison officials,
who failed to give him 5 of 642 scheduled insulin injections over
an 11-month period while he was awaiting trial, were deliberately
indifferent to his medical needs. Second, he claimed that
defendants violated his procedural due process rights by placing
him in solitary confinement without notice, explanation, or a
hearing, and by restraining him in the solitary confinement cell.
Third, he alleged that the jail’s inadequate law library denied his
right of access to the courts.
The case was referred to a magistrate judge on July 3, 1996,
and the magistrate ordered a hearing pursuant to Spears v.
McCotter, 766 F.2d 179 (5th Cir. 1985). At the hearing, the
parties consented to proceed before a magistrate judge, pursuant to
28 U.S.C. § 636(c). The defendants filed a motion for summary
judgment, which the magistrate granted with respect to Montalvo’s
deliberate indifference claim and his claim concerning access to
the courts. The magistrate did not grant summary judgment on the
due process claim and thus presided over a bench trial. Following
the trial, the magistrate judge found that the due process claim
was without merit. Specifically, he found that officers had
removed Montalvo to a separation cell only to restore order after
he had created a disturbance by exposing his genitals to a group of
should not be published.
2
female prisoners, and that Montalvo was immobilized to prevent him
from hurting himself following a suicide attempt. Motalvo appeals
the summary judgment on the deliberate indifference claim and the
judgment on the due process claim.
The district court did not err in awarding summary judgment.
On a deliberate indifference claim, a pretrial detainee must allege
acts or omissions constituting deliberate indifference to his
serious medical needs. See Estelle v. Gamble, 429 U.S. 97, 104
(1976); see also Hare v. City of Corinth, 74 F.3d 633, 643, 646-48
(5th Cir. 1996) (en banc). Merely negligent treatment or diagnosis
of a medical condition is not constitutionally inadequate. See
Hare, 74 F.3d at 645. The defendants’ affidavits in this case show
that at worst the defendants were merely negligent in treating
Montalvo; while officials admit to forgetting to giving the
injections during unusually busy time periods, they demonstrate
that they acted promptly to give Montalvo medical care once they
found out about their failure. Montalvo’s claims that the failure
to give medical care was intentional are conclusory, and this is
not enough to survive summary judgment. See Topalian v. Ehrman,
954 F.2d 1125, 1131 (5th Cir. 1992).1
Montalvo’s due process claim was also disposed of properly.
Montalvo challenges the magistrate’s credibility determinations,
but these were not clearly erroneous, especially in light of
1
Montalvo has also claimed that the defendants were
deliberately indifferent to his severe emotional illnesses. This
issue is raised for the first time on appeal, and we therefore will
not consider it. See, e.g., United States v. Jackson, 50 F.3d
1335, 1340 n.7 (5th Cir. 1995).
3
Montalvo’s admission in his briefs that he had attempted suicide.
See, e.g., Justiss Oil Co. v. Kerr-McGee Refining Corp., 75 F.3d
1057, 1067 (5th Cir. 1996).
AFFIRMED.
4