UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-60644
LENARD G. GIBBS,
Plaintiff-Appellant,
VERSUS
H.M. (MACK) GRIMMETTE, et al.,
Defendants
H.M. (MACK) GRIMMETTE, Sheriff of Bolivar County, MS;
CHARLES (MOON) ANDERSON, Jail Administrator of Bolivar
County, MS
Defendants-Appellees.
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No. 98-60809
LENARD G. GIBBS,
Plaintiff-Appellant,
VERSUS
H.M. (MACK) GRIMMETTE, et al.,
Defendants
CHARLES (MOON) ANDERSON, Jail Administrator of Bolivar County MS;
WILLIE DIXON; ALIENE DOWNS, RN; MANDY PREWITT, RN;
JANE SHOOK, RN,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Mississippi, Oxford
June 15, 2001
1
Before STEWART, PARKER, Circuit Judges, and GOLDBERG, Judge.*
ROBERT M. PARKER, Circuit Judge:
This case involves a claim under 42 U.S.C. § 1983 by Appellant
Lenard G. Gibbs, a pretrial detainee, against Sheriff Mack
Grimmette, two county deputies, and three nurses from the Bolivar
County Department of Health for failure to administer Gibbs a
tuberculosis skin test. Gibbs appeals from the district court’s
order granting Sheriff Grimmette’s motion for summary judgment and
the court’s order granting the remaining defendants’ motion for
judgment as a matter of law.
I.
Lenard Gibbs was confined in the Bolivar County Jail in Bolivar
County, Mississippi from December of 1992 to July of 1993. In
January of 1993, three nurses, acting on behalf of the Mississippi
Department of Corrections, arrived at the Bolivar County Jail to
administer tuberculosis skin tests on state inmates. Gibbs claimed
that he requested the test, but prison officials and the nurses from
the health department refused his request because he was a pretrial
detainee. Upon his transfer to another correction facility in
August of 1993, Gibbs tested positive for tuberculosis.
Gibbs filed suit under 42 U.S.C. § 1983 against H.M. Grimmette,
Sheriff of Bolivar County, Charles Anderson, an administrator at the
Bolivar County Jail, Willie Dixon, the head jailer at the Bolivar
*
Judge of the United States Court of International Trade, sitting
by designation.
2
County Jail, the Bolivar County Health Department, the Mississippi
State Department of Health, and three nurses from the Bolivar County
Health Department, Aliene Downs, Mandy Prewitt, and Jane Shook.
Gibbs claimed that, had he been tested earlier, he could have
avoided exposure to the disease or received preventative medication
that would have allayed his mental anguish. Gibbs argued that his
request for the tuberculosis test was denied even though the
defendants knew that there was a high risk of tuberculosis in the
Bolivar County Jail. Gibbs also maintained that the preventative
medication damaged his liver and heart. According to Gibbs, this
amounted to deliberate indifference to his medical needs.
The district court dismissed the Mississippi Department of
Health and granted summary judgment dismissing all claims against
Sheriff Grimmette as well as some of Gibb’s claims against Anderson
and Dixon. Gibbs filed two Rule 60(b) motions seeking reinstatement
of his claims against Sheriff Grimmette. The district court denied
both motions, but never entered a final judgment. Gibbs filed a
notice of appeal after the district court denied his second motion.
The appeal was designated case number 98-60644.
Gibbs proceeded to trial against the remaining defendants. At
the close of Gibbs’ case, the district court granted the defendants’
motion for judgment as a matter of law. The court determined that
the three nurses did not violate Gibbs’ constitutional rights and
therefore were entitled to qualified immunity. The court also
concluded that testing for tuberculosis in January as opposed to
3
August would not have altered the treatment or diagnosis of the
disease and that, in any event, Gibbs had not developed an active
case. Because Gibbs suffered no injury, the district court
determined that there was no factual issue for the jury and
dismissed the remaining claims against Anderson and Dixon. Gibbs
filed a notice of appeal from the district court’s final judgment.
The clerk of this Court designated the appeal as case number 98-
60809 and consolidated the appeal with case number 98-60644.
II.
We first address whether the district court erred by granting
the defendants’ motion for judgment as a matter of law. We review
the district court’s order under a de novo standard, examining the
evidence in the light most favorable to the nonmovant. See Russell
v. McKinney Hosp. Venture, 235 F.3d 219, 221 (5th Cir. 2000).
Judgment as a matter of law is appropriate if “the facts and
inferences point so strongly and overwhelmingly in favor of the
moving party [that] no reasonable jurors could have arrived at a
contrary verdict.” See McCoy v. Hernandez, 203 F.3d 371, 374 (5th
Cir. 2000). “A mere scintilla of evidence is insufficient to
present a question for the jury . . ..” Boeing Co. v. Shipman, 411
F.2d 365, 374-74 (5th Cir. 1969) (en banc).
Defendants Charles Anderson, Willie Dixon, and the three nurses
4
from the Bolivar County Health Department were entitled to qualified
immunity as long as their conduct did not violate a clearly
established statutory or constitutional right of which a reasonable
person should have known. See Harlow v. Fitzgerald, 457 U.S. 800,
818 (1982). Under Mississippi statute, correctional facilities are
required to administer tuberculosis tests to state offenders,
federal offenders and offenders from any other jurisdiction. See
MISS. CODE ANN. § 41-23-1(10). The statute does not consider pretrial
detainees. Gibbs therefore did not have a statutory right to
tuberculosis testing.1
“The constitutional rights of a pretrial detainee flow from the
procedural and substantive due process guarantees of the Fourteenth
Amendment . . ..” Olabisiomotosho v. City of Houston, 185 F.3d 521,
525 (5th Cir. 1999) (citing Bell v. Wolfish, 441 U.S. 520, 535
(1979). Gibbs argues that pretrial detainees should have the same
access to medical care as state inmates under the Fourteenth
Amendment. He suggests that local policies which preclude pretrial
1
Gibbs claims that he has a liberty interest under the
Mississippi laws that require the Board of Health to enact
regulations for the prevention of disease. State-created liberty
interests are “generally limited to freedom from restraint which,
while not exceeding the sentence in such an unexpected manner as to
give rise to protection by the Due Process Clause of its own force,
nonetheless imposes atypical and significant hardship on the inmate
in relation to the ordinary incidents of prison life.” Sandin v.
Conner, 515 U.S. 472, 483-84 (1995). The denial of a tuberculosis
skin test does not amount to the deprivation of a liberty interest
implicating Gibbs’ right to due process under the Fourteenth
Amendment. See Berry v. Brady, 192 F.3d 504, 508 (5th Cir. 1999).
5
detainees from mandatory tuberculosis testing are unconstitutional
when state inmates are tested annually pursuant to state law.
This Court has recognized that there is no significant
distinction between pretrial detainees and convicted inmates
concerning basic human needs such as medical care. See Hare v. City
of Corinth, MS, 74 F.3d 633, 643 (5th Cir. 1996) (en banc).
Although we have not required correctional facilities to apply
identical measures for preventing the spread of communicable
diseases, we have applied the same standard for assessing the
constitutional claims of both pretrial detainees and state inmates.
See id. See also Barrie v. Grand County, Utah, 119 F.3d 862, 868-69
(10th Cir. 1997) (holding that pretrial detainees are owed the same
duty of medical care as pretrial detainees). When the alleged
unconstitutional conduct involves an episodic act or omission, the
question is whether the state official acted with deliberate
indifference to the inmate’s constitutional rights, regardless of
whether the individual is a pretrial detainee or state inmate. See
id. at 645, 647 (citing Farmer v. Brennan, 511 U.S. 825(1994));
Sibley v. Lemaire, 184 F.3d 481, 489 (5th Cir. 1999), cert. denied,
529 U.S. 1019 (2000).2 We therefore do not require identical
2
The appropriate standard to apply in analyzing constitutional
challenges by pretrial detainees depends on whether the alleged
unconstitutional conduct is a “condition of confinement” or
“episodic act or omission.” See Scott v. Moore, 114 F.3d 51, 53
(5th Cir. 1997) (en banc). When the alleged constitutional
violation is a particular act or omission by an individual that
points to a derivative policy or custom of the municipality, we
6
procedures for detecting communicable diseases as long as the
failure to detect an illness does not amount to deliberate
indifference to a pretrial detainee’s basic medical needs.
To prove deliberate indifference, a pretrial detainee must
show that the state official knew of and disregarded an excessive
risk to the inmate’s health or safety. See Stewart v. Murphy, 174
F.3d 530, 534 (5th Cir. 1999). Deliberate indifference is more than
mere negligence in failing to supply medical treatment. See id.;
Williams v. Treen, 671 F.2d 892, 901 (5th Cir. 1982). Disagreement
with medical treatment alone cannot support a claim under § 1983.
See Norton v. Dimazana, 122 F.3d 286, 292 (5th Cir. 1997).
Gibbs argues that the defendants’ refusal to administer the
tuberculosis test upon his request amounted to deliberate
indifference to his medical needs. Gibbs complains first of the
defendants’ individual omissions and then points derivatively to the
policy of the Sheriff of Bolivar County. See Scott, 114 F.3d at 53.
We analyze an official’s personal liability for discrete acts or
omissions under a subjective deliberate indifference test. A
municipality’s liability for an alleged unconstitutional policy or
custom, however, requires an objective analysis. See
Olabisiomotosho, 185 F.3d at 526.
The undisputed testimony from two expert witnesses established
apply the deliberate indifference standard. See id. at 53-54.
Gibbs’ complaint that the defendants refused to test him for
tuberculosis qualifies as an “episodic act or omission.”
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that only an active case of tuberculosis is contagious. Exposure
to an individual with an active case of tuberculosis may result in
the production of antibodies which would produce a positive skin
test in the tested individual. If the skin of the tested individual
exhibits a certain degree of reaction, a chest x-ray is recommended
to determine if there is evidence of tuberculosis symptoms. The
separation of other inmates from the tested individual is only
necessary if the individual has objective symptoms of tuberculosis
in addition to the skin test. In addition, mere exposure to an
individual who has a positive skin test does not require the person
to be tested for the disease. An individual suffering from an
active case of tuberculosis would have the symptoms of an abnormal
chest x-ray, coughing up blood, losing weight, running fever, and
experiencing night sweats.
If an individual formerly tested negative and then receives a
positive skin test result, it is an indication that he has been
exposed to a person with active tuberculosis. A positive skin test
result does not mean that the person will exhibit symptoms of
tuberculosis in the future. It cannot be determined whether the
tested individual had been exposed to tuberculosis a month or six
months before showing a positive skin test.
Gibbs was incarcerated at the Bolivar County Jail as a pretrial
detainee on December 23, 1992, and remained in that facility until
he was transferred as a convicted state prisoner on July 28, 1993.
Gibbs testified that he tested negative for tuberculosis four months
8
before he was incarcerated.
Officials at the Bolivar County Jail received information from
a health center in mid-December 1992 that an inmate, who had been
transferred to the jail the prior evening, was undergoing treatment
for an active case of tuberculosis. Deputy Anderson testified that
the inmate was immediately transferred from the jail. Nurses from
the health department tested inmates who came into contact with the
infected individual, but the test results were negative. According
to medical testimony, it was unnecessary to test everyone in the
jail because of the brief period in which the infected inmate was
incarcerated.
Pursuant to state law, nurses Downs, Prewitt and Shook tested
state inmates for tuberculosis on January 11, 1993. Gibbs testified
that his alleged requests for the test in January were denied by the
nurses and the prison officials. He claimed that one inmate who
tested positive for exposure to the disease subsequently exhibited
signs of an active case. According to expert witness Dr. John Dial,
an employee of the Mississippi Department of Corrections, there was
no evidence or diagnosis of an active case of tuberculosis in the
Bolivar County Jail to which Gibbs could have been exposed.
Because the defendants did not know of any diagnosed active
cases of tuberculosis that could have infected Gibbs, they did not
act with subjective deliberate indifference by refusing to
administer the skin test. See Scott v. Moore, 114 F.3d at 54. In
9
addition, the general policy of the Bolivar County Jail and Bolivar
County Health Department to require testing of only those
individuals who show symptoms of active tuberculosis or those who
have come into contact with an infected individual does not amount
to objective deliberate indifference to the medical needs of
pretrial detainees. See id. If Gibbs was exposed to tuberculosis
during his incarceration at the facility, then failure of the jail
and health department officials to detect an active case of
tuberculosis amounted to, at most, negligence, which is not
actionable under § 1983. We therefore conclude that the trial court
did not err in granting the defendants’ motion for summary
judgment.3
II.
Gibbs argues that the district court erred by granting Sheriff
Grimmette’s motion for summary judgment. Gibbs filed a notice of
appeal from the district court’s denial of his Rule 60(b) motion.
“Where, as here, an action involves multiple parties, a disposition
3
We note that the record shows that Gibbs was not physically
injured from receiving the test in August instead of January.
Diagnosis and treatment of the disease in January as opposed to
August would have been the same. Gibbs has never exhibited signs
of an active case of tuberculosis, and after receiving preventative
medication, the likelihood that he ever will show symptoms of the
disease is extremely low.
Gibbs claims that the preventative medication damaged his heart
and liver, but we fail to see how the defendants’ refusal to test
him for the disease caused these alleged injuries. The
preventative treatment given to Gibbs after the August skin test
was not, by itself, deliberate indifference to his medical needs.
10
of the action as to only some of the parties does not result in a
final appealable order absent a certification by the district court
under Federal Rule of Civil Procedure 54(b).” Transit Mgmt. of
Southeast Louisiana, Inc. v. Group Ins. Admin., Inc., 226 F.3d 376,
381 (5th Cir. 2000). When “the record clearly indicates that the
district court failed to adjudicate the rights and liabilities of
all parties, the order is not, and cannot be presumed to be final,
irrespective of the district court’s intent.” Witherspoon v. White,
111 F.3d 399, 402 (5th Cir. 1997). We therefore dismiss Gibbs
appeal for lack of jurisdiction in case number 98-60644.
The district court entered its final judgment dismissing Gibbs
claims against all the defendants on December 10, 1998. Gibbs filed
a notice of appeal from the judgment on December 21, 1998, over
which this Court has appellate jurisdiction. Because the Sheriff’s
policy for detecting and treating tuberculosis did not amount to
deliberate indifference and becasue the Sheriff had no personal
knowledge of Gibbs’ desire to be tested, the district court’s final
judgment dismissing the claims against the Sheriff in both his
official and individual capacities is affirmed.4
III.
4
Gibbs complains that Dr. Alfio Rausa was a named defendant and
was the county health officer responsible for enforcing the rules
and regulations necessary to prevent the spread of contagious
diseases. Regardless of whether or not Gibbs adequately amended
his complaint to add Dr. Rausa as a defendant, his potential claims
against the doctor would be dismissed as a matter of law.
11
While state inmates and pretrial detainees risk tuberculosis
infection while incarcerated in the Bolivar County Jail, we do not
think that the lack of mandatory skin tests for all pretrial
detainees amounts to deliberate indifference to their medical needs.
We therefore affirm the district court’s final judgment and deny any
other relief Gibbs requests on appeal.
AFFIRMED
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