Smith v. Harris County ( 1999 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-20976
Summary Calendar
ROSEMARY SMITH ET AL.,
Plaintiffs,
ROSEMARY SMITH; NORMA SMITH; Individually
and as Next Friend of Amanda Smith, an Infant;
AUDREY M. SMITH; GABRIELLE M. SMITH,
Plaintiffs-Appellants,
versus
HARRIS COUNTY;
TOMMY THOMAS, Harris County Sheriff,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-97-CV-1956
--------------------
October 6, 1999
Before KING, Chief Judge, and HIGGINBOTHAM and STEWART, Circuit
Judges.
PER CURIAM:*
Plaintiff-Appellants, the heirs of Otha Audrey Smith, appeal
the district court’s grant of summary judgment in favor of
*
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that this opinion should not be published and is not precedent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.
No. 98-20976
-2-
Defendants-Appellees, Harris County, Texas, and Sheriff Tommy
Thomas. We AFFIRM.
Otha Smith died in 1997 while in the custody of the Harris
County Jail. Mr. Smith had been arrested for violating his
parole. Upon being taken into custody, Mr. Smith was given a
full medical examination that included testing for tuberculosis
(TB). Mr. Smith tested positive for TB. Pursuant to prison
protocol, Mr. Smith was placed on a “preventive therapy” regime.
This regime included taking the prescription drug Isoniazid
(INH). Approximately five months after beginning INH treatment
Mr. Smith experienced an extreme adverse reaction to the drug.
Even though prison doctors promptly took Mr. Smith off INH, Mr.
Smith’s reaction to INH caused his liver to fail and eventually
led to his death.
Mr. Smith’s heirs filed this action under 42 U.S.C. § 1983,
asserting that Sheriff Thomas and Harris County caused Mr.
Smith’s death by failing to detect and diagnose his toxic
reaction to INH in time to save his life. The Smiths further
contend that the Defendants-Appellees’ failure to adequately
train and supervise Harris County Jail personnel caused Mr.
Smith’s death from INH toxicity.
This court reviews a grant of summary judgment de novo,
using the same standard applicable in the district court.
Matagorda County v. Law, 19 F.3d 215, 217 (5th Cir. 1994).
Summary judgment is proper when, viewing the evidence in the
2
light most favorable to the nonmovant, there is no genuine issue
as to any material fact and the moving party is entitled to
judgment as a matter of law. Amburgey v. Corhart Refractories
Corp., Inc., 936 F.2d 805, 809 (5th Cir. 1991); Fed. R. Civ. P.
56(c). If the moving party meets the initial burden of
establishing that there is no genuine issue, the burden shifts to
the nonmoving party to produce evidence of the existence of a
genuine issue for trial. Little v. Liquid Air Corp., 37 F.3d
1069, 1075 (5th Cir. 1994) (en banc). The nonmovant cannot
satisfy his summary judgment burden with conclusory allegations,
unsubstantiated assertions, or mere scintillas of evidence. Id.
Because Mr. Smith was awaiting a probation revocation
hearing at the time of his death, his status is that of a
pretrial detainee. See Hamilton v. Lyons, 74 F.3d 99, 104-06
(5th Cir. 1996).1 If a jail official’s episodic acts or
omissions violate the constitutional rights of a pretrial
detainee, the official is liable to the detainee only if the
official’s acts or omission constitute subjective deliberate
indifference. Farmer v. Brennan, 511 U.S. 825 (1994). See also
1
Both parties analyze the Smiths’ claims as though they
arise under the Eighth Amendment. The Eighth Amendment, however,
applies only to convicted prisoners. See Downey v. Denton
County, 119 F.3d 381, 385 n.7 (5th Cir. 1997). Because Mr. Smith
was in prison awaiting a probation revocation hearing, his status
was more akin to that of a pretrial detainee. See Hamilton v.
Lyons, 74 F.3d 99, 104-06 (5th Cir. 1996). Therefore, the
Smiths’ claims flow from the Fourteenth, rather than the Eighth,
Amendment. Regardless, the governing standard for deliberate
indifference remains the same for both a pretrial detainee or a
post-conviction prisoner. See Hare v. City of Corinth, 74 F.3d
633, 643 (5th Cir. 1996).
3
Hare v. City of Corinth, 74 F.3d 633 (5th Cir. 1996). A prison
official acts with deliberate indifference “only if he knows that
inmates face a substantial risk of serious harm and disregards
that risk by failing to take reasonable measures to abate it.”
Farmer v. Brennan, 511 U.S. at 847.
The district court did not err in granting summary judgment
with regard to the claims against Sheriff Thomas. The Smiths
offered no evidence that Sheriff Thomas had subjective knowledge
that Mr. Smith was having a reaction to the INH he was being
given or that this reaction was potentially deadly. As such, the
Smiths have presented no genuine issue of fact indicating that
Sheriff Thomas violated Mr. Smith’s constitutional rights.
Similarly, to the extent that the plaintiffs assert that
Harris County is liable because its employees failed to recognize
that Mr. Smith was suffering from INH toxicity, their claim is
unpersuasive. It is clearly established that “[a] [county] may
not be held strictly liable for the acts of its non-policy-making
employees under a respondeat superior theory." Colle v. Brazos
County, 981 F.2d 237, 244 (5th Cir. 1993). Nor may it be held
liable under § 1983 for mere negligence in oversight. See Rhyne
v. Henderson County, 973 F.2d 386, 392 (5th Cir. 1992). Because
the guards and physicians at the Harris County Jail are “non-
policy-making employees,” Harris County cannot be held
vicariously liable for their failure to recognize Mr. Smith’s
allegedly manifest symptoms of INH toxicity.
4
Equally unavailing is the plaintiffs’ claim that the
defendants failed to supervise adequately the personnel of the
Harris County Jail. The plaintiffs have offered no competent
evidence that the guards at the Harris County Jail have a history
of failing to provide necessary medical attention. See Hinshaw
v. Doffer, 785 F.2d 1260, 1263 (5th Cir. 1986). In fact, the
record indicates that Mr. Smith’s own behavior potentially
delayed a diagnosis of INH toxicity. The record shows that Mr.
Smith gave inconsistent descriptions of his illness to clinic
personnel, failed to give a complete medical history upon
incarceration, and deliberately failed to provide a urine sample
when requested.
Furthermore, the record indicates that every time Mr. Smith
requested medical attention he was seen by a prison nurse. There
is no evidence, other than the uncorroborated affidavits of the
Plaintiffs-Appellants, that Mr. Smith did not receive medical
attention when requested. Additionally, Mr. Smith did not admit
to having, or begin to show, any symptoms of INH toxicity until
February 4, 1997, four months after he began taking INH. The
affidavits of Plaintiffs-Appellants Rosemary and Audrey Smith
alleging that the jail failed to provide adequate medical
treatment, standing alone, are insufficient to indicate
deliberate indifference in the supervision of jail employees by
Harris County Jail officials. These affidavits, therefore, fail
to set forth the specific facts necessary to sustain a claim
5
against Harris County or Sheriff Thomas as required by Fed. R.
Civ. P. 56(e).
Lastly, the plaintiffs have failed to adequately brief their
contention that the policies of the Harris County Jail governing
the health, welfare, and supervision of inmates are inadequate.
Accordingly, this issue has been abandoned on appeal. See Yohey
v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).
For the foregoing reasons the district court’s grant of
summary judgment in favor of the Defendants-Appellees is
AFFIRMED.
6