Stephen Gilbert v. French, et al

Filing

UNPUBLISHED OPINION FILED. [09-20768 Affirmed] Judge: WED , Judge: JES , Judge: LHS. Mandate pull date is 11/22/2010 [09-20768]

Stephen Gilbert v. French, :et al Case 09-20768

Document: 00511280971 Page: 1 Date Filed: 11/01/2010

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-20768 S u m m a r y Calendar November 1, 2010 Lyle W. Cayce Clerk

S T E P H E N GILBERT, P la in t if f -A p p e lla n t v. L O R I ANDERSON BERNDT, Detective of Police; STEVEN FRY, Detective of P o l ic e ; CITY OF BRYAN TEXAS; ST JOSEPH HOSPITAL, DR. JOHN A. M A S O N , St. Joseph Hospital, DR. CHARLES B. WILLIAMS, St. Joseph H o s p ita l, D e fe n d a n t s -A p p e lle e s

A p p e a l from the United States District Court fo r the Southern District of Texas U S D C No. 4:06-CV-3986

B e fo r e DAVIS, SMITH, and SOUTHWICK, Circuit Judges. P E R CURIAM:* S t e p h e n Gilbert, Texas prisoner # 1378106, appeals the district court's g r a n t of summary judgment dismissing his 42 U.S.C. § 1983 complaint against D e t e c t iv e Lori Anderson Berndt, Detective Stephen Fry, the City of Bryan, T e x a s , Doctor John Mason, Doctor Charles Williams, and the St. Joseph R e g io n a l Health Center. He argues that, in dismissing his claim that he was
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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Case: 09-20768 Document: 00511280971 Page: 2 Date Filed: 11/01/2010 No. 09-20768 d e n ie d prompt and proper medical care, the district court erroneously applied E ig h t h Amendment jurisprudence rather than the standard for claims arising u n d e r the Fourteenth Amendment. He contends that the district court wrongly fo u n d that Berndt and Fry did not unconstitutionally disregard his need for m e d ic a t io n to ameliorate pain related to his gunshot wounds; he argues that B e r n d t and Fry were aware of his pain, but did not insure that the hospital staff a t St. Joseph Regional Health Center promptly administered him pain m e d ic a t i o n because the detectives wanted to finish questioning him about his r o le in an armed robbery. He also argues that the district court wrongly granted t h e defendants summary judgment without first ensuring that his appointed c o u n s e l filed a brief that adequately defended his position. This court reviews a grant of summary judgment de novo. Cousin v. Small, 325 F.3d 627, 637 (5th C ir . 2003). G ilb e r t does not provide adequate argument regarding the district court's fin d in g that the City of Bryan, Texas, Doctor John Mason, Doctor Charles W illia m s , and the St. Joseph Regional Health Center were entitled to summary ju d g m e n t . He therefore has abandoned his claims against these defendants. See B r in k m a n n v. Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1 9 8 7 ). G ilb e r t has not established that the district court used the wrong standard o f review to evaluate his denial-of-medical-care claims. Gilbert, who was a p r e t r ia l detainee at the time of the relevant events, asserted claims that focused o n the misconduct of specific individuals rather than a condition of confinement. See Shepherd v. Dallas County, 591 F.3d 445, 452 (5th Cir. 2009). Accordingly, h is claims are properly characterized as involving episodic acts or omissions, and t h e deliberate indifference standard set forth in Farmer v. Brennan, 511 U.S. 8 2 5 , 834 (1994), is the measure of culpability. See Hare v. City of Corinth, Miss., 7 4 F.3d 633, 643 (5th Cir. 1996) (en banc). The record shows that the district c o u r t evaluated Gilbert's denial-of-medical-care claims under the Farmer 2

Case: 09-20768 Document: 00511280971 Page: 3 Date Filed: 11/01/2010 No. 09-20768 s t a n d a r d , and he therefore has not shown that the district court used an in c o r r e c t standard of review. T h e record also shows that the district court correctly found that Gilbert d id not establish a constitutional violation with respect to the conduct of Berndt a n d Fry. Gilbert specifically failed to demonstrate that Berndt and Fry were d e lib e r a t e ly indifferent to his serious medical needs. See Farmer, 511 U.S. at 8 3 5 -3 7 . Although Gilbert contends that Fry and Berndt prevented the staff at S t . Joseph Regional Health Center from administering pain medication until the d e t e c t iv e s finished questioning him, the record supports that the decision w h e t h e r ­ and when ­ to administer pain medication was wholly unrelated to t h e detectives or their law enforcement concerns; the decision was made by the h o s p it a l staff and was premised upon legitimate medical reasons. Moreover, b e c a u s e the record shows that the detectives were present when hospital staff n o t only showed awareness of Gilbert's pain but also informed him of their plan fo r administering pain medication, there is no indication that the detectives e x h ib it e d deliberate indifference by not alerting hospital staff about Gilbert's c o m p la in t s of pain. The detectives deferred to hospital staff's opinion about w h e n pain medication should be administered and proceeded with their objective o f collecting information about the armed robbery in which Gilbert was im p lic a t e d , i.e., their questioning of Gilbert was not done maliciously for the p u r p o s e of delaying the administration of pain medication. The record also does n o t support that the detectives understood Gilbert's pain to present a substantial r is k of serious medical harm. See id. at 837. Thus, because Gilbert did not show t h a t Berndt and Fry's conduct amounted to a constitutional violation, the district c o u r t did not err in granting them summary judgment based upon qualified i m m u n it y . See Lytle v. Bexar County, Tex., 560 F.3d 404, 409 (5th Cir. 2009), c e r t. denied, 130 S. Ct. 1896 (2010). G ilb e r t 's argument that his appointed counsel failed to file a proper r e s p o n s e to the defendants' summary judgment motions does not suggest that 3

Case: 09-20768 Document: 00511280971 Page: 4 Date Filed: 11/01/2010 No. 09-20768 t h e district court's judgment was erroneous. The constitutional right to effective a s s is t a n c e of counsel does not apply in a civil case, see Sanchez v. U.S. Postal S e r v ., 785 F.2d 1236, 1237 (5th Cir. 1986), and any deficient conduct by counsel, t h e r e fo r e , would not constitute a basis for invalidating the district court's ju d g m e n t. F o r the foregoing reasons, the judgment of the district court is A F F IR M E D .

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