United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 31, 2003
Charles R. Fulbruge III
Clerk
No. 02-51408
Summary Calendar
ALEJANDRO GARCIA,
Plaintiff-Appellant,
versus
COUNTY OF EL PASO; LEO SAMANIEGO,
Defendants-Appellees.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. EP-00-CV-344-PRM
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Before SMITH, DUHÉ, and WIENER, Circuit Judges.
PER CURIAM:1
Alejandro Garcia, a Texas resident, appeals from the district
court’s order granting summary judgment to defendants Sheriff Leo
Samaniego and the County of El Paso (“County”). Garcia filed this
42 U.S.C. § 1983 civil rights complaint alleging that the
defendants’ employees at the El Paso County Detention Facility
(“EPCDF”) were deliberately indifferent to his serious medical
needs while Garcia was confined there as a pretrial detainee for
34 hours in August 1999, after Garcia suffered at least two
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that this opinion should not be published and is not precedent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.
epileptic seizures during his confinement. He maintains that the
defendants’ custom or practice of failing to ensure that detainees
were properly and timely administered medications, and their
failure to train subordinates with respect to the handling and
treatment of seizure patients, amounted to objective deliberate
indifference and made them liable as municipal entities.
This court reviews de novo a district court’s order granting
a party’s summary-judgment motion. Whittaker v. BellSouth
Telecomm., Inc., 206 F.3d 532, 534 (5th Cir. 2000). Summary
judgment is proper if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with any
affidavits filed in support of the motion, show that there is no
genuine issue as to any material fact and that the moving party
is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c).
The moving party bears the burden of showing the district court
that there is an absence of evidence to support the nonmoving
party’s case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).
If the moving party meets the initial burden of showing that there
is no genuine issue, the burden shifts to the nonmovant to set
forth specific facts showing the existence of a genuine issue for
trial. Rule 56(e).
As a pretrial detainee, Garcia’s constitutional rights flowed
from the due process guarantees of the Fourteenth Amendment rather
than from the Eighth Amendment’s prohibition against cruel and
unusual punishment. See Hare v. City of Corinth, 74 F.3d 633, 639
2
(5th Cir. 1996) (en banc). When such a detainee complains of
unconstitutional medical treatment, there is no significant legal
distinction between pretrial detainees and convicted prisoners.
Gibbs v. Grimmette, 254 F.3d 545, 548 (5th Cir. 2001). When a
pretrial detainee’s claim is based on a jail official’s episodic
act or omission, “the proper inquiry is whether the official had
a culpable state of mind in acting or failing to act.” Hare, 74
F.3d at 643. To establish liability, a pretrial detainee must
“show that a state official acted with deliberate indifference to
a substantial risk of serious medical harm and that injuries
resulted.” Wagner v. Bay City, Tex., 227 F.3d 316, 324 (5th Cir.
2000).
In an episodic-act-or-omission case against a municipality,
“an actor is usually interposed between the detainee and the
municipality, such that the detainee complains first of a
particular act of, or omission by, the actor and then points
derivatively to a policy, custom or rule (or lack thereof) of
the municipality that permitted or caused the act or omission.”
Flores v. County of Hardeman, Texas, 124 F.3d 736, 738 (5th Cir.
1997). To succeed in holding a municipality liable under these
standards, the plaintiff must establish not only that a municipal
employee acted with subjective deliberate indifference but also
that the employee’s act resulted from a policy or custom adopted
or maintained by the municipality with objective deliberate
indifference to the plaintiff’s constitutional rights.
3
See Olabisiomotosho v. City of Houston, 185 F.3d 521, 526
(5th Cir. 1999).
The district court appeared to conclude that the defendants
had fallen short of establishing that no genuine of issue of
material fact remained as to whether the defendants’ employees at
EPCDF had been deliberately indifferent to Garcia by failing to
give him his epilepsy medications. The absence of first-hand
testimony from EPCDF nurses who had provided medication to Garcia,
as well as errors in the EPCDF’s Medical Administration Record for
Garcia, casts doubt on whether Garcia received the necessary
medications.
Garcia had argued that a municipal “custom” of failing to
administer medications to EPCDF detainees can be established
through records of EPCDF detainee grievances alleging the failure
to administer medications, evidence of dozens of prior seizure
incidents involving EPCDF detainees, and a state lawsuit filed by
the survivors of an EPCDF detainee who died in 1997 as the result
of an epileptic seizure. (Garcia has not suggested that the
County had an official “policy,” written or unwritten, of
neglecting to administer necessary medications to detainees.)
To establish a “custom,” Garcia was required to show both a
“persistent and widespread practice” and actual or constructive
knowledge of such custom by the municipality or by an official to
whom the municipality had delegated policymaking authority.
4
See Pineda v. City of Houston, 291 F.3d 325, 328 (5th Cir. 2002),
cert. denied, 537 U.S. 1110 (2003).
The district court did not err in concluding that the
evidence submitted by Garcia was insufficient to create an issue
of material fact as to whether the defendants observed an
unconstitutional custom or were constructively aware of such a
custom. The record of grievances cited by Garcia included
grievance responses that indicated that EPCDF personnel usually
replied that the complaining detainees either would receive or
already had received their medications. The responses reflected,
if anything, a ready willingness by EPCDF officials to correct
improper dosages and to fill depleted prescriptions. As for the
prior lawsuit cited by Garcia, the lawsuit appears to be pending
and the issues therein, while very similar to those in the instant
case, remain unresolved. The lawsuit is thus of doubtful
evidentiary value. Even if the evidence submitted by Garcia was
sufficient to raise a genuine issue of material fact as to whether
a municipal custom existed, he has not demonstrated that the
defendants were actually or constructively aware of it.
See Pineda, 291 F.3d at 330 (constructive knowledge may be
demonstrated by showing that the pattern of prior incidents was so
widespread that they were “‘the subject of prolonged public
discussion or of a high degree of publicity.’” (citation
omitted)).
5
Garcia has also argued that the defendants were liable for
failing to train EPCDF personnel in the “proper handling and
recognition of inmates who suffer from seizure disorders” or in
reducing the risk of such disorders. To succeed on a failure-to-
train claim, a plaintiff must establish (1) inadequate training
procedures, (2) that inadequate training procedures caused the
injury, and (3) deliberate indifference of municipal policymakers.
Pineda, 291 F.3d at 332. The evidence submitted by Garcia with
respect to EPCDF personnel’s responses to the two seizures he
allegedly suffered while in EPCDF custody did not establish a
genuine issue of material fact as to whether improper training
contributed to his injuries. In fact, there is almost no evidence
of what treatment was administered to Garcia in the immediate wake
of the seizures.
Garcia does not brief the state-law tort claims and Fifth and
Eighth Amendment claims that he had set forth in his complaint.
These claims are abandoned. See Walker v. Thompson, 214 F.3d 615,
625 (5th Cir. 2000); FED. R. APP. P. 28(a)(9).
The judgment of the district court is AFFIRMED.
6