Cole v. Dallas Cty Cmsnr Ct ( 2001 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-10897
Summary Calendar
PETER T. COLE,
Plaintiff-Appellant,
versus
DALLAS COUNTY COMMISSIONERS COURT ET AL.,
Defendants,
JIM BOWLES, Sheriff,
Defendant-Appellee.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:97-CV-2952-X
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May 9, 2001
Before DAVIS, JONES and DeMOSS, Circuit Judges.
PER CURIAM:*
Peter T. Cole, a former detainee at the Dallas County Jail,
appeals the district court’s order granting summary judgment in
favor of defendant Sheriff Jim Bowles in Cole’s 42 U.S.C. § 1983civil rights action, in which he alleged that Bowles and other
defendants** were deliberately indifferent to his serious medical
*
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that this opinion should not be published and is not precedent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.
**
By failing to make appellate arguments regarding the
district court’s earlier dismissal of defendants Dallas County
No. 00-10897
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needs. Cole, who suffers from diabetes and hypertension,
asserted that Bowles, as supervisor over county jails, was
deliberately indifferent to his medical needs by failing to
adequately train and supervise his security and medical
personnel.
Cole contends that the district court erred in granting
summary judgment to Bowles because Bowles failed to offer
summary-judgment proof. He also suggests that Bowles was
personally aware of his medical problems and failed to act to
ensure that he received treatment. For essentially the first
time on appeal, Cole summarily maintains that Bowles and others
unconstitutionally retaliated against him for his filing of
grievances and letters regarding these matters. Cole may not
raise a claim for the first time on appeal. See Leverette v.
Louisville Ladder Co., 183 F.3d 339, 342 (5th Cir. 1999), cert.
denied, 528 U.S. 1138 (2000).
The district court incorrectly applied the law in disposing
of Cole’s claims. Citing Siglar v. Hightower, 112 F.3d 191, 193
(5th Cir. 1997), the court concluded that Cole’s claims failed
because his medical problems did not establish that he had
suffered more than a “‘de minimis’ injury.” The “‘de minimis’
injury” standard in Siglar applies to claims that a prisoner was
subjected to excessive force by correctional officers. See id.The appropriate standard for addressing Cole’s claims is whether
Commissioners Court and the Medical Section of the Dallas County
Jail, Cole has abandoned any claims against those defendants.
Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993); FED. R.
APP. P. 28(a)(9).
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the defendants’ actions were “sufficiently harmful to evidence
deliberate indifference to his serious medical needs.” Estelle
v. Gamble, 429 U.S. 97, 106 (1976). Although it appears that
Cole was a pretrial detainee for at least part of his confinement
in the Dallas County Jail and such detainees’ constitutional
rights flow from the Fourteenth Amendment, the same standard of
subjective deliberate indifference is applicable to such a
detainee. See Hare v. City of Corinth, 74 F.3d 633, 650 (5th
Cir. 1996) (en banc).
Although the district court applied the wrong legal
standard, we may affirm on any alternative ground that is
apparent from the record. See Sojourner T v. Edwards, 974 F.2d
27, 30 (5th Cir. 1992). A review of the evidence of record
reflects that Sheriff Bowles was not liable as a supervisor under
42 U.S.C. § 1983. In response to Bowles’ summary-judgment
motion, Cole failed to submit evidence establishing a genuine
issue of material fact whether Bowles either personally acted
with deliberate indifference towards Cole’s medical needs or
failed to properly train and supervise his subordinates.
See Estelle, 429 U.S. at 106; Smith v. Brenoettsy, 158 F.3d 908,
911-12 (5th Cir. 1998); Celotex Corp. v. Catrett, 477 U.S. 317,
325 (1986); Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th
Cir. 1994) (en banc) (nonmovant cannot satisfy summary-judgment
burden with conclusional allegations, unsubstantiated assertions,
or only a scintilla of evidence). A supervisory official may not
be held liable on any theory of vicarious liability. Thompkins
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v. Belt, 828 F.2d 298, 303 (5th Cir. 1987). The district court’s
order granting Bowles’ summary-judgment motion is
AFFIRMED.