UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 95-60145
Summary Calendar
LUTHER J. HARVEY,
Plaintiff-Appellant,
VERSUS
RICK GASTON, Captain and
JOE PRICE, Sheriff,
Defendants-Appellees.
* * * * * * * * * * * * * * * * * * * * * * * * * * * *
LUTHER J. HARVEY,
Plaintiff-Appellant,
VERSUS
JOE PRICE, Sheriff,
Defendant-Appellee.
Appeal from the United States District Court
For the Southern District of Mississippi
(93-CV-502)
February 26, 1996
Before DAVIS, BARKSDALE and DeMOSS, Circuit Judges.
PER CURIAM:*
*
Pursuant to Local Rule 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this opinion should not be published and is not precedent except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 Local Rule 47.5.4.
Background
Luther Harvey, a former inmate of the Harrison County jail,
filed civil rights suits against Rick Gaston, the supervising
captain at the jail, and Joe Price, the sheriff of Harrison County.
Harvey, at the time a pretrial detainee, alleged that he was denied
mental and medical treatment for the ten months that he was housed
in the jail. He alleged that, despite a June 19, 1992 court order
that he be transferred to the Mississippi State Hospital for a
mental evaluation, he did not have a mental evaluation until April
7, 1993. He further alleged that he was improperly housed with
maximum security inmates.
The defendants filed a motion to dismiss, or in the
alternative, for summary judgment. They outlined medical services
provided to Harvey by the jail, including optical and dental
treatments, and submitted exhibits supporting the summary of
treatment. Regarding Harvey's delayed mental evaluation, the
defendants averred that, upon inquiry, they were advised by the
state mental hospital that 20 to 25 people were on a waiting list
for evaluation prior to Harvey. The defendants submitted Gaston's
affidavit attesting to such. Regarding Harvey's maximum security
classification, the defendants averred that Harvey was arrested and
detained upon a charge that he attempted to stab his ex-wife to
death at the hospital where she worked and that Harvey was
belligerent at the time of booking. The defendants submitted the
jail's general housing orders indicating that Harvey was housed in
accordance with the orders.
2
The district court granted the defendants' motion for summary
judgment. The court concluded that Harvey's claims against Sheriff
Price failed because Harvey failed to allege personal involvement
by Price. The court rejected Harvey's remaining claims on their
merits. Harvey timely appealed.
Opinion
Although Harvey's appellate brief is difficult to decipher, he
apparently argues that he should have been given a mental
evaluation by a local psychiatrist, citing Partridge v. Two Unknown
Police Officers of Houston, 791 F.2d 1182, 1187 (5th Cir. 1986),
which held that the failure to treat a serious psychological or
psychiatric condition could result in a viable § 1983 claim. He
argues that he was "indeed abused mentally [during] his
incarceration at the Harrison County Jail concerning his Vet[e]rans
mental illness." He also suggests that he was belligerent at
booking because of his mental illness.1
Construing Harvey's brief liberally, we will assume that
Harvey challenges the district court's grant of summary judgment
regarding his delayed mental evaluation and his housing
classification. Harvey does not re-argue on appeal his claim that
he was completely denied any medical care during his tenure at the
Harrison County jail, nor does he challenge the district court's
1
Harvey also alleges that he was deprived of a "change to
state his claim" at the pretrial settlement. Issues raised for the
first time on appeal were not reviewable by this Court unless they
involve purely legal questions and failure to consider them would
result in manifest injustice. Varnado v. Lynaugh, 920 F.2d 320,
321 (5th Cir. 1991). Because Harvey's assertion is not purely
legal, this Court need not consider it.
3
determination that his claims against Sheriff Price should be
dismissed based on a lack of personal involvement. These claims
are thus deemed abandoned. See Yohey v. Collins, 985 F.2d 222,
224-25 (5th Cir. 1993).
This Court reviews the grant of summary judgment de novo,
using the same standard applied by the district court. Matagorda
County v. Law, 19 F.3d 215, 217 (5th Cir. 1994). FEDERAL RULES OF
CIVIL PROCEDURE 56 mandates the entry of summary judgment if the
pleadings and other filings 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. Little v. Liquid Air Corp., 37 F.3d
1069, 1075 (5th Cir. 1994) (en banc). If the movant meets its
burden, the nonmovant must go beyond the pleadings and show that
there is a genuine issue for trial. Id.
In Hare v. City of Corinth, No. 93-7193, 1996 WL 34766, ____
F.3d ____ (5th Cir. Jan. 26, 1996), this Court sitting en banc
clearly held that the duties and obligations owed to a pretrial
detainee relative to medical care are the same as those owed to
convicted inmates, i.e. the state must provide "basic human needs,
including medical care and protection from harm, during their
confinement" but that the test of a state jail official's liability
is that such official must have had "subjective knowledge of a
substantial risk of serious harm" and then "responded with
deliberate indifference to that risk". Id. at *18.
Applying these standards in this case, we find that Harvey
provided no evidence to controvert the defendants' showing that the
4
delay in his mental evaluation was related to the waiting list at
the state mental facility. Regarding his assertion that he should
have seen a local psychiatrist, Harvey has not shown that his
mental condition was such as to produce "a substantial risk of
serious harm." Further, the record contains no indication that an
immediate mental evaluation was necessary to protect Harvey's
health. Compare Partridge, 791 F.2d at 1187 (failure to take steps
to save a known suicidal detainee from injuring himself may
constitute a due process violation). Finally, as noted by the
district court, Harvey did ultimately receive an extensive
psychological evaluation by the state mental facility; and there is
no basis, therefore, upon which a finding of deliberate
indifference could be made.
Regarding Harvey's complaint about his housing assignment,
conditions of confinement amount to a due process violation only if
they constitute punishment of the detainee. Valencia v. Wiggins,
981 F.2d 1440, 1445 (5th Cir.), cert. denied, 113 S. Ct. 2998
(1993). Deciding whether a condition of confinement amounts to
punishment turns on whether the disability is imposed for the
purpose of punishment or whether it is but an incident of some
other legitimate governmental purpose. See Harris v. Angelina
County, 31 F.3d 331, 334 (5th Cir. 1994). Even assuming that
Harvey was given an improper classification based on his
belligerence, the classification also was based on the nature of
the charges against Harvey, as reflected in the jail's general
housing orders. Harvey makes no argument challenging his
opin\95-60145.opn
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classification based on such. No due process violation has
occurred. The district court did not err by granting the
defendants' motion for summary judgment. See Little, 37 F.3d at
1075.
Harvey also argues that he was deprived of his "due process
right to a [S]pears hearing." He argues that because he did not
have such a hearing, the district court's order granting summary
judgment was not a final decision. He also argues that the court
erred by cancelling the magistrate judge's order issuing a writ of
habeas corpus ad testificandum.
A Spears2 hearing is in the nature of a motion for a more
definite statement. Wilson v. Barrientos, 926 F.2d 480, 482 (5th
Cir. 1991). Given that Harvey had an opportunity to respond to the
defendants' motion for summary judgment, a Spears hearing was
neither required nor necessary. Accordingly, the order for the
writ of habeas corpus ad testificandum was properly rescinded.
AFFIRMED.
2
See Spears v. McCotter, 766 F.2d 179, 181 (5th Cir. 1985).
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