UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-60193
GEORGE T. CALLICUTT,
Plaintiff-Appellant,
VERSUS
PANOLA COUNTY JAIL, ET AL,
Defendants,
PANOLA COUNTY, JAIL; DAVID BRYANT, SHERIFF; JESSE LYONS; ROBERT
AVANT; MIKE DARBY; WILLIAM T. WILSON; and JAMES L. TRAVIS,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Mississippi
(2:94-CV-72-S-B & 2:94-CV-129-B-B)
November 4, 1999
Before DUHÉ, BARKSDALE, and DENNIS, Circuit Judges.
PER CURIAM:1
George T. Callicutt (“Callicutt”) was confined at the Panola
County Jail as a pretrial detainee from approximately March 21,
1993 until March 29, 1994. Callicutt filed two separate suits in
federal district court. First he asserted a 42 U.S.C. § 1983
(“Section 1983") claim against the Panola County Jail, the Sheriff
and two sheriff’s deputies for deprivation of personal property.
The district court dismissed this claim and Callicutt does not
1
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this opinion should not be published and is not precedent except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.
appeal this dismissal. Callicutt also asserted a Section 1983
claim against the Panola County Jail (“the Jail”), the Sheriff and
the Panola County Board of Supervisors (“the Defendants”) regarding
the conditions of confinement at the Jail. He alleged that the
defendants were deliberately indifferent to his need for
psychiatric care, that he was not provided access to a physician,
the Jail trustees failed to give him his medication, and the Jail
was unsanitary and lacked proper ventilation.2
The Defendants then moved to dismiss the complaint or, in the
alternative, for summary judgment. Following a Spears hearing, the
magistrate judge recommended that the motion for summary judgment
be granted, finding that Callicutt had shown no issue of material
fact regarding conditions of his confinement. The district court
adopted the findings and conclusions of the magistrate judge,
granted the motion for summary judgment, and dismissed the action
as frivolous under 28 U.S.C. § 1915(e)(2)(B)(I). Callicutt
contends pro se (1) that the Defendants’ violation of a discovery
order prejudiced him and impaired the magistrate’s report and
recommendation; and (2) that the district court erred in approving
the magistrate judge’s report and recommendation granting summary
judgment to the Defendants.
I. Discovery
We review discovery violations for abuse of discretion. U.S.
v. Dukes, 139 F.3d 469, 476 (5th Cir. 1998). Callicutt’s main
2
He also lists a claim concerning grievance procedures, but
does not brief it. We, therefore, do not consider it.
2
discovery dispute concerns a letter which may have been written by
Callicutt’s treating physician to the Sheriff regarding Callicutt’s
follow-up care. The magistrate judge ordered the Defendants to
produce the letter. Callicutt contends that he never received the
letter and the district court should not have granted the motion
for summary judgment prior to the completion of the discovery
process.
The district court did not abuse its discretion. The record
shows that a diligent and thorough, although unsuccessful, search
was made for the document. This ended Defendants’ responsibility
for production.
II. Summary Judgment Regarding Conditions of Confinement
We review a grant of summary judgment de novo, examining the
evidence in the light most favorable to the non-moving party.
Abbott v. Equity Group, Inc., 2 F.3d 613, 618-19 (5th Cir. 1993).
Summary judgment is proper if the moving party establishes that
there is no genuine issue of material fact and that the movant is
entitled to judgment as a matter of law. Id.
A pretrial detainee’s constitutional rights flow from both the
procedural and substantive due process guarantees of the Fourteenth
Amendment. Hare v. City of Corinth, 74 F.3d 633, 639 (5th Cir.
1996) (en banc) (citing Bell v. Wolfish, 441 U.S. 520, 99 S.Ct.
1861, 60 L.Ed.2d 447 (1979). The state cannot punish a pretrial
detainee. Hare, 74 F.3d at 639. “[U]nder Bell, a pretrial
detainee cannot be subjected to conditions or restrictions that are
not reasonably related to a legitimate governmental purpose.” Id.
3
at 640. The Bell test applies “when a pretrial detainee attacks
general conditions, practices, rules, or restrictions of pretrial
confinement”. Id. at 643.
Callicutt has articulated a condition-of-confinement claim on
numerous grounds. Callicutt alleges that the Jail lacked adequate
medical staff and that, as a result, his depression, nervousness,
high blood pressure, and headaches went untreated until he was
admitted to the mental hospital. He also contends that he often
did not receive prescribed medications; the conditions in the Jail
exacerbated his medical problems; there was inadequate ventilation
because the windows were boarded; he was given a thin, blood-and-
urine stained mattress that was infested with lice; and he was
denied indoor and outdoor recreation. Finally, he complains that
the Jail was unsanitary and infested with bugs and rats.
Regarding his medical treatment, Callicutt must allege acts or
omissions sufficiently harmful to evidence deliberate indifference
to serious medical needs in order to state a cognizable Section
1983 claim. Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50
L.Ed.2d 251 (1976). See also Hare, 74 F.3d at 643 (noting that the
Supreme Court applies the deliberate indifference standard and not
the Bell test to medical care claims by pretrial detainees). The
record reveals that the prison provided Callicutt adequate medical
treatment. Moreover, there is no factual basis to show Callicutt
sustained any injuries because of his lack of treatment. Although
the jail did not provide Callicutt his medication upon each
request, these negligent acts do not form a basis for finding
4
deliberate indifference as a matter of law. See Daniel v.
Williams, 474 U.S. 327, 328, 106 S.Ct. 662, 663, 88 L.Ed.2d 662
(1986). Besides mere allegations against the Sheriff, Callicutt
also fails to show any evidence demonstrating a Jail policy to
deprive detainees of medical care. Fickes v. Jefferson County, 900
F. Supp. 84 (E.D. Tex. 1995).3
Callicutt also contends that the windows in the Jail were all
boarded up with plywood and there was no ventilation system. The
Defendants established that they boarded up the windows to prevent
contraband from being passed through open windows. To compensate
for the lack of ventilation, the Jail set up several floor fans
throughout the prison. Applying the Bell test, it is clear that
the Jail had a legitimate reason to board up the windows and such
action did not violate Callicutt’s constitutional rights.
Callicutt also contends that his due process rights were
violated because of the condition of his bedding and the unsanitary
conditions of the jail. Callicutt has failed to show any injury as
a result of sleeping on this mattress. In addition, the Jail had
in place a program to eradicate any insect and rat problem. We
find that under Bell, Callicutt has not shown that the Jail made
3
Under the Prison Litigation Reform Act, “No Federal civil
action may be brought by a prisoner confined in a jail, prison or
other correctional facility for mental or emotional injury suffered
while in custody without prior showing of physical injury.” 42
U.S.C. § 1997e(e). Although this provision applies to both
convicted prisoners and pretrial detainees, this Circuit has not
determined whether Section 1997e(e) applies retroactively to cases
such as this one pending in the district court when the statute was
enacted. Because we find Callicutt’s claims to be without merit,
we need not decide this issue.
5
him sleep on the mattress or kept the Jail unsanitary as a form of
punishment.
Callicutt also contends that there were no recreation or
exercise privileges at the Jail. However, the magistrate judge’s
report correctly noted that neither prisoners nor pretrial
detainees have a constitutional right to outdoor exercise or
recreation. Jones v. Diamond, 594 F.2d 997, 1012-13 (5th Cir.
1979). Moreover, Callicutt has not shown how a denial of such a
privilege contributed to any injuries.
AFFIRMED.
6
Callicutt v. Panola County Jail
Combined Opinion