United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS December 2, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 02-61010
Summary Calendar
BOBBY SERTON,
Plaintiff-Appellant,
versus
BILLIE SOLLIE, Individually and as Sheriff of Lauderdale
County, Mississippi; DORIS CALLAHAN, Individually and as
Jail Administrator; SARAH P. SPRINGER, Individually and as
Chancellor of Lauderdale County, Mississippi; LAUDERDALE
COUNTY BOARD OF SUPERVISORS; LAURENCE PRIMEAUX; WILLIAM B.
JACOB,
Defendants-Appellees.
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Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 4:01-CV-90-LN
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Before JONES, BENAVIDES, and CLEMENT, Circuit Judges.
PER CURIAM:*
Bobby Serton has appealed the district court’s judgment
dismissing his civil action asserting various claims related to
his incarceration for civil contempt for failure to pay past-due
child support. See Serton v. Serton, 819 So. 2d 15 (Miss. Ct.
App. 2002). In his amended complaint, Serton named as
defendants: Billy Sollie, the Sheriff of Lauderdale County,
*
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this opinion should not be published and is not precedent except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.
No. 02-61010
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Mississippi; Doris Callahan, Jail Administrator; Sarah P.
Springer, chancellor of the Twelfth Chancery Court; the
Lauderdale County Board of Supervisors (“Board of Supervisors”);
attorney Lawrence Primeaux; and attorney William Jacob. The
district court dismissed the claims against Chancellor Springer
and granted motions for summary judgment by the remaining
parties.
Serton contends that the district court erred in holding
that Chancellor Springer was entitled to judicial immunity and in
granting her motion to dismiss. We review the district court’s
dismissal under FED. R. CIV. P. 12(b)(6) for failure to state a
claim de novo. Brown v. NationsBank Corp., 188 F.3d 579, 585
(5th Cir. 1999). Judicial officers are entitled to absolute
immunity from claims arising out of acts performed in the
exercise of their judicial functions. Graves v. Hampton, 1 F.3d
315, 317 (5th Cir. 1993). Judicial immunity may be overcome only
by showing that the actions complained of were nonjudicial in
nature or were taken in the complete absence of all jurisdiction.
Mireless v. Waco, 502 U.S. 9, 11-12 (1991). Serton has failed to
make such a showing. See Malina v. Gonzales, 994 F.2d 1121,
1124–25 (5th Cir. 1993).
Serton contends that the district court erred in granting
the motions for summary judgment filed by attorneys Primeaux and
Jacob, Sheriff Sollie, and Jail Administrator Callahan. Summary
judgment is appropriate “if the pleadings, depositions, answers
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to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment
as a matter of law.” FED. R. CIV. P. 56(c); see Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986). “If the moving party meets
the initial burden of showing there is no genuine issue of
material fact, the burden shifts to the nonmoving party to
produce evidence or designate specific facts showing the
existence of a genuine issue for trial.” Allen v. Rapides Parish
Sch. Bd., 204 F.3d 619, 621 (5th Cir. 2000) (internal quotations
and citation omitted).
Defendant Primeaux represented Serton in the divorce action
prior to being permitted to withdraw. See Serton, 819 So. 2d at
17. Characterizing Serton’s claim against Primeaux as a legal-
malpractice action, the district court held that Serton’s claims
against Primeaux are time-barred under state law. Serton
contends that the limitation period should be equitably tolled
because he suffered from a mental deficiency. Under state law,
limitation periods are tolled during periods in which the
claimant is disabled by “infancy or unsoundness of mind.” MISS.
CODE ANN. § 15-1-59 (West 2003). “The test as to whether the
claimant is so mentally incompetent as to toll the running of the
statute of limitations, is this: Is his mind so unsound, or is
he so weak in mind, or so imbecile, no matter from what cause,
that he cannot manage the ordinary affairs of life?” USF&G Co.
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v. Conservatorship of Melson, 809 So. 2d 647, 653 (Miss. 2002)
(internal quotation marks omitted). Serton stated in his
affidavit in opposition to the motion for summary judgment that
he became suicidal and “mentally incompetent” on June 13, 2000.
That one is suicidal does not establish that his mind is so
unsound that he is unable to manage his ordinary affairs.
Serton’s unsupported assertion regarding his mental competency is
not sufficient to show that there was a genuine issue of material
fact with respect to his soundness of mind.
In granting the motion for summary judgment of attorney
Jacob, who represented Serton’s wife in the divorce proceeding,
the district court held that Serton had failed to show that
Jacob’s alleged statutory and constitutional violations were the
proximate cause of Serton’s incarceration for contempt of court.
Serton contends on appeal that Jacob’s failure to serve him
properly with notice of a September 7, 1999, contempt hearing
prevented him from proving to the trial court his inability to
pay the child support arrearages and that Jacob obtained the
judgment of divorce fraudulently by causing him to be
incarcerated. Serton contends that Jacob violated his right to
due process by obtaining his incarceration in order to obtain an
unfair advantage in the divorce proceeding.
In its opinion and judgment, dated April 21, 1998, the state
court found Serton in contempt, but suspended incarceration on
the condition that he purge himself from contempt. Serton’s
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failure to comply with the court’s orders resulted in his
incarceration for contempt on September 7, 1999. Jacob stated in
his affidavit filed in support of the motion for summary judgment
that Serton was notified by mail of the hearing. Serton did not
state in his affidavit in opposition to the motion for summary
judgment that he did not know that the matter had been set for
hearing. There is no genuine issue whether Jacob’s failure to
personally serve Serton with process was the proximate cause of
his incarceration.
Moreover, 42 U.S.C. § 1983 provides a private right of
action for persons who have been deprived of a right secured
under the Constitution by a person acting under color of state
law. Serton contends that Jacob acted as a state actor “when he
invoked the enforcement of the purported ‘Temporary Agreed
Judgment’ without service of any summons . . . .” This argument
is without merit. “[P]rivate attorneys, even court-appointed
attorneys, are not official state actors, and generally are not
subject to suit under section 1983.” See Mills v. Criminal Dist.
Court No. 3, 837 F.2d 677, 678 (5th Cir. 1988). Private
attorneys may, however, be liable under 42 U.S.C. § 1983 if they
conspire with governmental officials. See id. Serton does not
argue on appeal that Jacob conspired with a government official.
Underlying Serton’s various claims against Sheriff Sollie
and Jail Administrator Callahan is the question whether Serton’s
status as a person incarcerated for civil contempt affects the
No. 02-61010
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analysis of his constitutional claims. We assume without
deciding that Serton’s claims should be analyzed in light of the
standards applicable to claims asserted by pre-trial detainees.
The standard applied in analyzing constitutional challenges
by pretrial detainees hinges upon the classification of the
challenge as an attack on a condition of confinement or as an
episodic act or omission. Hare v. City of Corinth, 74 F.3d 633,
644 (5th Cir. 1996) (en banc). Conditions of confinement claims
are analyzed under the reasonable-relationship test of Bell v.
Wolfish, 441 U.S. 520 (1979). Under this standard, a
constitutional violation exists only if it is determined that the
complained-of condition is not reasonably related to a
legitimate, non-punitive governmental objective. See Hare, 74
F.3d at 640. When the complained-of harm involves an episodic
act or omission, the claimant must show that the individual
defendant acted with subjective deliberate indifference to the
detainee’s constitutional rights. See id. at 649 n.4.
Serton’s main complaint on appeal is that he was housed in
administrative segregation on 23-hour lockdown from May 9, 2000,
to October 18, 2000, without predeprivation notice and hearing.
See Wolff v. McDonnell, 418 U.S. 539, 563-66 (1974). In
considering whether a condition of confinement resulted in the
deprivation of liberty without due process of law, the inquiry
focuses on whether the condition or restriction was punitive
because the State may not punish pretrial detainees. Bell, 441
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U.S. at 535. The fact that “detention interferes with the
detainee’s understandable desire to live as comfortably as
possible” does not equate to punishment. Id. at 537. However,
an arbitrary or purposeless restriction on a pretrial detainee
leads to the inference that the restriction is punitive. See
Olgin v. Darnell, 664 F.2d 107, 109 (5th Cir. 1981). “[T]he
effective management of the detention facility once the
individual is confined is a valid objective that may justify
imposition of conditions and restrictions of pretrial detention
and dispel any inferences that such restrictions are intended as
punishment.” Id. (quoting Bell, 441 U.S. at 540).
The summary judgment evidence reflects that Serton’s
placement in 23-hour lockdown was for his own protection and for
the protection of other inmates and was not punishment for a
disciplinary violation. Serton’s conclusional statements and
suppositions in his affidavit are not sufficient to show that
there is a genuine issue whether the lockdown was punitive. Nor
has Serton shown that there is a genuine issue whether Sheriff
Sollie and Jail Administrator Callahan acted with subjective
deliberate indifference to Serton’s right to due process.
See Hare, 74 F.3d at 649 n.4.
For the same reasons, Serton cannot show that Sheriff Sollie
and Jail Administrator Callahan acted with subjective deliberate
indifference by taking his walking cane away. The summary
judgment evidence shows that the cane was taken because Serton
No. 02-61010
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used it to threaten other inmates. On appeal, Serton contends
only that the reasons for taking the cane away were insufficient
and that his cane was taken away because he was accused falsely
by other inmates of threatening behavior.
This claim implicates the adequacy of the medical care
provided in the jail. “[T]here is no significant distinction
between pretrial detainees and convicted inmates concerning basic
human needs such as medical care.” Gibbs v. Grimmette, 254 F.3d
545, 548 (5th Cir. 2001). 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); see Estelle v. Gamble, 429 U.S. 97, 104
(1976). “‘Deliberate indifference’ requires that the official
have subjective knowledge of the risk of harm.” Wagner, 227 F.3d
at 324.
Serton contends that he had a medical prescription for the
cane prior to his incarceration and that he told the jail medical
staff of this fact on his arrival at the jail. This fact, if
true, does not show that Sheriff Sollie and Jail Administrator
Callahan were subjectively aware of this fact or that they acted
with deliberate indifference to Serton’s need for a cane. See
Thompkins v. Belt, 828 F.2d 298, 303 (5th Cir. 1987)
(“[S]upervisory officials are not liable for the actions of
subordinates on any theory of vicarious liability.”).
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Serton complains that he became depressed and suicidal while
in lockdown and that Sheriff Sollie and Jail Administrator
Callahan acted with deliberate indifference to his mental
condition. The record reflects that, after Serton threatened to
commit suicide, he was placed on suicide watch until he could be
seen by a counselor. Serton argues only that Sheriff Sollie and
Jail Administrator Callahan caused his depression by putting him
in lockdown, by taking his cane away, and by making him
uncomfortable. These allegations do not show that the defendants
acted with deliberate indifference to his mental condition.
Serton contends that he became diabetic as a result of the
stress of incarceration and that he was not provided with
immediate treatment. These allegations do not show that the
defendants acted with deliberate indifference to a serious
medical condition. The record reflects that Serton’s diabetes
was treated.
Serton has raised no issue with respect to the granting of
summary judgment for the Board of Supervisors or with respect to
his Fourth Amendment, denial-of-access-to-courts, and state-law
tort claims. Accordingly, those claims are abandoned. See Yohey
v. Collins, 985 F.2d 222, 225 (5th Cir. 1993).
The judgment is AFFIRMED.