Mikesell v. Brown ( 2002 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-10499
Summary Calendar
STEVEN KURT MIKESELL,
Plaintiff-Appellant,
versus
JAY BROWN, Sheriff;
LIEUTENANT PULSE, Administrator;
SERGEANT GRIEVER, Staff Supervisor,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:99-CV-229-Y
December 23, 2002
Before GARWOOD, JOLLY, and SMITH, Circuit Judges.
PER CURIAM:*
Steven Kurt Mikesell, Texas prisoner # 841274, appeals the
district court’s grant of summary judgment for the defendants in
his 42 U.S.C. § 1093 civil rights action. Mikesell argues that the
district court improperly decided disputed factual issues in
*
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opinion should not be published and is not precedent except under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.
granting summary judgment. He contends that he alleged in his
original complaint, under penalty of perjury, that the defendants
failed to provide him with proper medical care and a proper diet.
He contends that they ran out of his medication “many times” and
gave him expired medications. He contends that his complaint
squarely contradicts the factual allegations of the defendants.
In support of their motion for summary judgment, the
defendants presented, among other evidence, an affidavit of Dr.
Michael Hueber, the physician charged with providing medical care
to Mikesell while Mikesell was confined to the Parker County Jail,
from December 20, 1997 until September 29, 1998. According to Dr.
Hueber, that Mikesell did not receive his Glyburide on four
occasions and had to mix his own insulin using insulin that was
past its expiration date did not cause him harm because his
documented blood sugar levels did not vary from his norm. Further,
based on the evidence that Mikesell received two insulin shots each
day, two snacks each day, and his other medications each day for
almost a year, with the exception of two occasions (one in June and
one in August) when the jail ran out of Glyburide, causing him to
miss a total of four doses (two on each occasion), the undisputed
summary judgment evidence does not demonstrate deliberate
indifference in the defendants’ treatment of his diabetes. Sgt.
Griever’s responses to Mikesell’s grievances demonstrate exactly
the opposite, namely that the defendants promptly sought to remedy
2
the problems Mikesell brought to their attention and sought to
prevent their reoccurrence. Moreover, Mikesell was prescribed a
2800 calorie diet, in accordance with a food plan designed to
accommodate his diabetes. The dietician reviewed each day’s menu
to see if the regularly scheduled meal met the special requirements
of particular inmates. Mikesell received three meals a day and two
snacks.
Mikesell did not file a response to the defendants’ motion for
summary judgment, nor has he identified any disputed factual issues
in his brief. He relies upon the broad, general allegations made
in his original complaint that the defendants failed to provide him
with proper medical treatment and a proper diet. These allegations
are not sufficient. Where the opposing party moves for summary
judgment, the non-movant needs to produce evidence or designate
specific facts showing the existence of a genuine issue of material
fact necessitating trial. Celotex Corp. v. Catrett, 477 U.S. 317,
322-24 (1986).
As the district court correctly noted, an amended complaint
supersedes the original complaint and renders it of no legal effect
unless the amended complaint specifically refers to and adopts or
incorporates by reference the earlier pleading. King v. Dogan, 31
F.3d 344, 346 (5th Cir. 1994); Boelens v. Redman Homes, Inc., 759
F.2d 504, 508 (5th Cir. 1985). Applying this rule, Mikesell’s
amended complaint is the only effective complaint, as the district
3
court had clearly set forth in its order of January 25, 2002, over
a month before appellees’ motion for summary judgment was filed.
That amended complaint is not only unverified, but it also does not
contain allegations that would defeat summary judgment.1
Mikesell’s unsubstantiated and unsworn assertions are not competent
summary judgment evidence. Abbott v. Equity Group, Inc., 2 F.3d
613, 619 (5th Cir. 1993); Nissho-Iwai American Corp. v. Kline, 845
F.2d 1300, 1306 (5th Cir. 1988). Mikesell, therefore, has failed
to carry his burden of producing evidence or designating specific
facts sufficient to show the existence of a genuine issue of
material fact. Accordingly the district court did not err in
granting the defendants’ motion for summary judgment.
Mikesell also argues that the district court abused its
discretion in not granting his motion for appointment of counsel.
He contends that his account was in direct conflict with the
defendants’. He maintains that based on his lack of legal
training, the complexity of the case, his request for a jury trial,
and the merits of his case, counsel should have been appointed.
In its order denying appointed counsel, the district court
considered the appropriate factors and determined that the law in
1
In construing Mikesell’s complaint, this Court is aware of
its duty to interpret liberally the pleadings of pro se litigants.
See Mehroder v. Phelps, 608 F.2d 1023, 1025 (5th Cir. 1979). Such
litigants, however, are not free from the rules of procedure
applicable to other parties. See Green v. Darrell, 969 F.2d 915,
917 (5th Cir. 1992).
4
the case was well-developed and that the plaintiff appeared able to
represent himself. Ulmer v. Chancellor, 691 F.2d 209, 213 (5th
Cir. 1982). As the case developed, a need for counsel did not
develop. Contrary to Mikesell’s assertions, the defendants’
summary judgment evidence did not contradict his allegations;
rather, the defendants admitted that they ran out of Glyburide and
70/30 insulin on the occasions he alleged. The disagreement was in
the interpretation of this evidence in the context of the course of
Mikesell’s diabetes treatment while incarcerated at the Parker
County Jail. Once the defendants produced their summary judgment
evidence, it became clear that there was no factual dispute in this
case requiring a trial, and thus, no need for appointed counsel.
The district court did not abuse its discretion in denying
Mikesell’s motion for appointed counsel. Branch v. Cole, 686 F.2d
264, 266 (5th Cir. 1982).
AFFIRMED
5