     Case: 17-20435      Document: 00514849161         Page: 1    Date Filed: 02/25/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit


                                      No. 17-20435
                                                                                 FILED
                                                                          February 25, 2019
                                                                            Lyle W. Cayce
STEVEN KURT BAUGHMAN,                                                            Clerk

                      Plaintiff - Appellant

v.

DOCTOR MICHAEL SEALE; M. GUICE; DOCTOR LAMBI; DOCTOR
HOWARD; DETENTION OFFICER J. RAMIREZ; DETENTION OFFICER
M. Z. SACKS; DRAKE NARENDORF; NURSE SCOTT; KATHY ROSSI; EL
FRANCO LEE; HARRIS COUNTY; BOBBY DAVIS,

                      Defendants - Appellees




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:14-CV-3164


Before HIGGINBOTHAM, ELROD, and HO, Circuit Judges.
PER CURIAM:*
       A parolee arrested and held in pretrial detainment brings this action
alleging constitutional violations and torts arising from jail officials’
management of his diabetes, as well as alleged retaliation. The detainee
appeals pro se the district court’s grant of summary judgment to the defendant



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
     Case: 17-20435      Document: 00514849161        Page: 2     Date Filed: 02/25/2019



                                     No. 17-20435
jail officials and to Harris County. We affirm the district court, deny the motion
for appointment of counsel, and dismiss the case.

                                            I.
      Steven Baughman is a pretrial detainee at the Harris County Jail, the
third largest jail in the United States, housing almost 10,000 individuals. The
Jail’s Health Services Division is responsible for Baughman’s medical care.
The Division operates several clinics for specialized care, including a Chronic
Care Clinic, which provides care for, among other conditions, type 2 diabetes.
Baughman is among the Jail’s 105 to 120 inmates requiring care for diabetes.
                                            A.
       Type 2 diabetes is a disease of the endocrine system in which the
pancreas does not produce adequate amounts of insulin, a hormone that lowers
blood-glucose concentrations to maintain the normal range of 60 to 100 mg/dL. 1
When blood-glucose concentrations rise above this normal range, a person
experiences a condition known as hyperglycemia, which can result in heart
attack, stroke, loss of eyesight, kidney failure, diabetic coma, and death. A
diabetic’s blood-glucose levels must be regulated by treatment, specifically,
with injections of insulin or oral drugs such as metformin, glyburide, and
glipizide. Diabetics often receive these drugs in connection with meals, when
blood glucose is boosted by food consumption.
      While diabetic treatment is primarily aimed to prevent hyperglycemia,
patients also must avoid excessively low levels of blood glucose. If
concentrations fall below 60 mg/dL, a person experiences a condition known as
hypoglycemia. Initially, hypoglycemia presents with sweatiness, jitters,



      1  Baughman’s expert, Dr. David H. Madoff described the optimal fasting blood-glucose
level as between 80 and 130 mg/dL.
                                            2
    Case: 17-20435     Document: 00514849161      Page: 3   Date Filed: 02/25/2019



                                  No. 17-20435
fatigue, and dizziness. If left untreated, however, the situation can devolve into
“severe hypoglycemia,” a situation in which the diabetic patient requires
assistance. Untreated, it can result in disorientation, seizures, brain damage,
and even coma or death. Hypoglycemia is affected by the patient’s balance of
three variables: diet, specifically carbohydrate intake; physical activity; and
drug dosage. If a patient’s blood-glucose level is unexpectedly low, a normal
insulin dose can trigger hypoglycemia. So, diabetics often keep sugary foods or
glucose tablets ready to hand, to raise blood-glucose levels if their treatment
unexpectedly triggers hypoglycemia.
      To keep blood-glucose levels within the normal range, when diabetics use
drugs like insulin they must know the status of their current blood-glucose
levels, assessing the need for an increase or decrease. Many diabetics,
particularly those who have lived with the condition for at least two years, have
developed the ability to sense low blood-glucose levels, feeling telltale dizziness
or shakiness. Where they feel these symptoms, diabetics may decline a
scheduled insulin dose, so as not to lower blood-glucose levels, or they may
consume a sugary food to raise blood-glucose levels into the normal range.
      While a diabetic may sense a low blood-glucose level, there are
technologies that offer more precise measurement. One is the A1C hemoglobin
test, a blood test which measures a patient’s average blood-glucose level over
the preceding seven- to twelve-week period. Another method is the “fingerstick
test,” a device which pricks the patient’s finger to draw a drop of blood, applies
the blood to a test strip, and quantifies the current blood-glucose level. Outside
jail, fingerstick tests are usually self-administered. Since blood-glucose levels
can fluctuate, a combination of the A1C hemoglobin test and periodic
fingerstick measurements allow a medical provider to define patterns of blood-
glucose variability, and in light of these patterns adjust diabetes-drug
regimens to keep a patient within the normal range.
                                        3
    Case: 17-20435     Document: 00514849161     Page: 4   Date Filed: 02/25/2019



                                  No. 17-20435
      More frequent measurement allows for a more detailed understanding of
blood-glucose patterns. Accordingly, many professional sources recommend
daily of use of blood-glucose tests. The Federal Bureau of Prisons’ Clinical
Practice Guidelines states that “[f]requent monitoring of blood glucose (three
times per day) is optimal for most patients with . . . type 2 diabetes who are on
insulin.” The American Diabetes Association’s Position Statement on diabetes
management in correctional institutions likewise insists that “[p]atients with
type 2 diabetes need to monitor at least once daily, and more frequently based
on their medical plan,” although “frequency of monitoring will vary by patients’
glycemic control and diabetes regimes.” The Institute for Clinical Systems
Improvement, an organization that compiles medical care guidelines,
recommends that “[p]atients using multiple insulin injections perform [self-
monitoring of blood glucose] three or more times daily,” although it adds that
frequent testing is particularly important where the patient is “using glucose
to guide mealtime insulin dosing.”
                                       B.
      At the Harris County Jail, nurses circulate with an insulin cart to
diabetic inmates’ cells twice a day, first around 3–4 a.m., and then again
around 3–4 p.m. The carts carry insulin and oranges or apples, which are
provided to inmates for consumption if they feel their glucose levels are too
low. Though not on the carts, medical staff have glucose tablets for patients as
needed. Another nurse circulates among the patients with a fingerstick testing
device. Nurses administer insulin injections and undertake fingerstick testing
as assigned by a list provided by the Jail’s licensed doctors and nurse
practitioners (“medical providers”), specifying which patients are to receive
which treatment or test on each round.
      The Jail has no universal requirement regarding the frequency of
fingerstick testing. The frequency of testing is governed in the first instance by
                                        4
    Case: 17-20435    Document: 00514849161     Page: 5   Date Filed: 02/25/2019



                                 No. 17-20435
the medical provider’s clinical judgment as to a patient’s needs, although as
will be seen, this judgment is not the final word. The Jail’s former Executive
Medical Director, Dr. Michael Seale, and its current interim Executive Medical
Director, Dr. Marcus Guice, concede that the Jail’s delegation of fingerstick
testing frequency to medical providers can—and does—result in less frequent
testing than recommended by the Federal Bureau of Prisons, American
Diabetes Association, and Institute for Clinical Systems Improvement. Sharon
Lambi, a physician assistant in the Chronic Care Clinic, describes thrice daily
fingerstick tests as the standard of care. Seale, however, states that
professional bodies’ recommendations are not generalizable to jails where
inmates are subject to 24-hour monitoring, diet is regular and largely
controlled. That is, more frequent testing may be an optimal, but not a
necessary, precondition to the effective and safe management of type 2
diabetes. The record is unclear on whether budgetary or logistical constraints
would have limited the Jail from providing thrice daily fingerstick tests to all
type 2 diabetic inmates.
      The Jail’s use of fingerstick testing is one part of a larger system of
inmate diabetes management. When a diabetic inmate first arrives at the Jail,
medical providers assess the insulin regimen that the detainee followed prior
to coming to the Jail. Providers test patterns in the individual’s blood-glucose
variability, and prescribe a treatment regimen. In prescribing insulin dosages
and schedules, providers also consider the patterns of Jail life: patients are
served meals at regular times. Patients can receive guidance from a dietician
and can be prescribed diets tailored to their condition. Patients can purchase
food items from the commissary; however, where these choices interfere with
treatment, providers have discretion to impose commissary restrictions.
      Following intake, patients receive regular evaluation. If the patient is
managing his diabetes well, the providers will see the patient a minimum of
                                       5
    Case: 17-20435     Document: 00514849161      Page: 6   Date Filed: 02/25/2019



                                  No. 17-20435
once every three months; if the patient’s diabetes management is less
successful, providers will see the patient more often, with no limit to the
frequency of appointments. With these evaluations, medical providers measure
A1C hemoglobin levels and order a series of fingerstick tests (twice a day for
three consecutive days) to gather data needed to evaluate appropriateness of a
patient’s insulin regimen. Providers retain the discretion to order additional
fingerstick testing where they feel it clinically necessary to reevaluate a
patient’s insulin regimen. Additionally, if a patient needed insulin injections
or testing more frequently than could be provided by the circulating nurses,
medical providers can place the patient in the Jail’s infirmary for more
intensive treatment.
      Medical providers’ prescriptions are the starting point for diabetes
management, but nurses and patients also have input. The Jail’s circulating
nurses exercise discretion in administering insulin injections. During their
rounds, where they judge that a patient’s blood-glucose levels might not be
high enough to allow for safe administration, they can refuse to administer the
injection. Patients also exercise discretion in their care. The patient can decline
an insulin injection where he feels hypoglycemic, or alternatively can consume
the glucose-rich foods provided by the insulin cart—oranges or apples—where
he senses the onset of hypoglycemic symptoms. Where a patient declines an
insulin injection, the administering nurse will report the refusal to the Clinic;
a medical provider will decide whether in light of the refusal the patient should
be administered a fingerstick test for a more precise quantification of glucose.
In addition to declining drugs, patients can also request to be seen at the
Chronic Care Clinic outside of regular appointment hours, or seek more
immediate care from the Jail’s general clinic, where diabetic patients reporting
hypoglycemia are treated immediately. The patient’s ability to request
treatment is not restricted to the daily rounds: medical staff are available at
                                        6
    Case: 17-20435      Document: 00514849161        Page: 7    Date Filed: 02/25/2019



                                    No. 17-20435
all times. A patient can request additional blood-glucose testing in two ways.
First, the patient can simply request the test from the nurse making the
rounds with the fingerstick device; the nurse provides the test at his or her
discretion. The patient can also submit a “sick call” request, an official form
routed to one of the Jail’s medical providers for evaluation and approval.
        The Harris County Jail has been accredited by the National Commission
of Correctional Health Care (NCCHC) since 1985. As part of the accreditation
process, the NCCHC evaluates all of the Jail’s health policies—including its
use of fingerstick tests—and monitors via on-site surveys every three years.
On summary judgment, Baughman casted doubt on the meaningfulness of the
NCCHC’s approval, pointing to damning reports of inadequate medical care at
the Jail during the period of accreditation. Specifically, in 2009, while the Jail
was NCCHC accredited, the Department of Justice issued a report critical of
the Jail’s provision of medical care, including for diabetes. The Report
specifically discusses failures to diagnose diabetic inmates, failures to respond
to diabetic emergencies, and a complete absence of a chronic care program. It
appears from the record that at least some of the problems identified by the
Report had been addressed before Baughman arrived at the Jail, and
Baughman does not argue that the Report identifies problems applicable to his
care.
                                          C.
        While on parole, Baughman was arrested on suspicion of participation
in an aggravated assault with a deadly weapon, and arrived at the Jail on April
3, 2014 to await trial. 2 Baughman suffered from numerous health problems
including obesity—he weighed 376 pounds—and type 2 diabetes. Baughman



      At the time of the district court’s determination of the summary judgment motions,
        2

Baughman was still in pretrial detention at the Jail.
                                           7
    Case: 17-20435      Document: 00514849161      Page: 8    Date Filed: 02/25/2019



                                   No. 17-20435
alleges that he is a “brittle” diabetic, meaning that his blood-glucose levels
fluctuate widely over the long and short term. 3 Some of Baughman’s diabetic
caregivers characterize him as a stable diabetic, but his treatment history
indicates that his blood-glucose levels were not in control, repeatedly exceeding
the normal range. Upon his arrival, the Jail’s Chronic Care Clinic considered
Baughman’s previous diabetic management regimen, tested his blood-glucose
levels, and prescribed twice daily insulin injections.
      Baughman’s expert witness, Dr. David H. Madoff, an endocrinologist,
opines that “within a reasonable degree of medical certainty, it [wa]s essential
for Baughman’s health and safety for HCSOJ to provide him with glucose
monitoring a minimum of three times daily.” This is because, Madoff says, “Mr.
Baughman’s healthcare team needs to know in a timely fashion if he is having
either high or low blood sugars (hyperglycemia or hypoglycemia) to adjust his
insulin doses accordingly and to prevent dangerous hypoglycemia.” The
frequency with which Jail medical staff tested Baughman’s blood-glucose
levels varied over the course of his detention, but it is not disputed that staff
rarely measured Baughman’s blood-glucose level three times in a day; on most
days they did not conduct a fingerstick test at all. Between April 2014 and
September 2016, on 165 days Baughman received at least two blood-glucose
tests, and on 78 days he received one test; on 73 percent of days he received no
fingerstick test. On multiple occasions Baughman went for extended periods
without blood-glucose monitoring—up to 70 days, in the period between May
and July 2015. Baughman requested additional fingerstick tests using the
“sick call” request process: nine out of the ten times he requested a fingerstick
test by this means it was provided. Baughman also requested fingerstick tests



      Defendant Harris County has admitted this allegation in its answer to the Fourth
      3

Amended Complaint.
                                          8
     Case: 17-20435       Document: 00514849161         Page: 9    Date Filed: 02/25/2019



                                      No. 17-20435
from the circulating nurse—at times unsuccessfully 4—and submitted multiple
inmate complaint forms to a head nurse, some after the commencement of this
litigation, complaining as a general matter about the frequency of fingerstick
testing and demanding daily monitoring. The Jail did not accede to these
general demands.
       By February 2015, ten months after Baughman’s arrival—and after this
suit had commenced—Jail staff observed that he was not complying with
dietary recommendations and had gained fifty pounds, now weighing 428
pounds. During a meeting on February 2, 2015, Jail dietician Cathy Rossi
confronted Baughman with records of his purchases of high carbohydrate foods
from the commissary. Rossi suggested better choices and encouraged diet
compliance.
       On March 30, 2015, Baughman submitted a letter to the Texas
Commission on Jail Standards (TCJS), a body appointed by the Governor of
Texas to develop rules and oversee Texas county jails. In the letter Baughman
raised concerns regarding “healthcare violations and safety violations” at the
Jail, including the denial of daily fingerstick testing, denial of a diabetic diet,
as well as inadequate provision of storage for inmates’ legal materials and
unsanitary meal trays. At the time, Dr. Seale, the Jail’s Executive Medical
Director, was also a commissioner on the TCJS. Baughman’s letter argues that
Seale’s dual roles posed a conflict of interest. Dr. Seale does not specifically
recall reviewing Baughman’s letter, but states that he probably did review it,
since medical complaints were usually routed to him.




       4 Jail medical staff exercised discretion in granting Baughman’s requests for further
care in connection with diabetes management as well as several other health problems he
reported, for example, chronic pain, tinnitus, potential brain tumors, potential bone cancer,
and ear pain from the excessive noise generated by fellow inmates.
                                             9
   Case: 17-20435     Document: 00514849161      Page: 10   Date Filed: 02/25/2019



                                  No. 17-20435
      On April 13, 2015, on instructions from her supervisor, Health Services
Division Medical Administrator Bobby Davis, Rossi imposed commissary
restrictions on Baughman. These restrictions included a “low sodium”
restriction—potentially tied to his hypertension—as well as a dialysis
restriction and a “no solids” restriction. During an appointment at the Chronic
Care Clinic on April 28, 2015, nurse practitioner Beverly Howard explained to
Baughman that the restrictions had resulted from providers’ observations
that, notwithstanding repeated discussions of diet, Baughman’s weight, blood
pressure, and blood glucose were not in control. The dialysis and no-solids
restrictions appear to be mismatched with Baughman’s medical needs. Dr.
Seale does not recall any involvement or communication regarding the
commissary restrictions, and is aware of no connection between Baughman’s
letter and the restrictions. Neither Davis nor Rossi were aware of Baughman’s
letter at the time Rossi imposed the restrictions.
                                       D.
      On November 5, 2014, Baughman filed a complaint pro se in the district
court, bringing claims against a list of twenty one officials of the Harris County
Jail, including under the First and Fourteenth Amendments and 42 U.S.C.
§ 1983. After Baughman submitted several amendments to his claims, the
district court appointed counsel, and Baughman filed a Fourth Amended
Complaint. In this operative complaint, Baughman sues Harris County and
diabetic caregivers at the Jail, alleging that they denied him adequate medical
care, violating his rights under the Eighth and Fourteenth Amendments, and
also are liable for negligent provision of medical care. Baughman also sues the
County and six individual dental care providers at the Jail for their allegedly
negligent and unconstitutional denial of adequate of dental care, violating his
rights under the Eighth and Fourteenth Amendments. Baughman sues the
County and supervisory officials at the Jail for failure to supervise and train
                                       10
   Case: 17-20435          Document: 00514849161         Page: 11      Date Filed: 02/25/2019



                                        No. 17-20435
staff to provide adequate medical and dental care. Finally, Baughman sues
three individual Jail officials—Seale, Davis, and Rossi—alleging they
unlawfully retaliated against him for the complaint submitted to the Texas
Commission on Jail Standards, violating his rights under the First and
Fourteenth Amendments.
      Defendants filed separate motions for summary judgment. Harris
County filed a motion for summary judgment, arguing that no reasonable juror
could find municipal liability on Baughman’s constitutional claims and that
his state-law claims were barred by sovereign immunity. Five diabetic
caregivers—Seale, Guice, Davis, Lambi, and Howard—moved for summary
judgment on the basis of qualified immunity. The dietician Rossi together with
the dentists moved for summary judgment also asserting the defense of
qualified immunity. The district court granted the motions, with the exception
of the dentists’ motion on the dental care claims. The parties later settled the
dental care claims.
      Baughman appeals the district court’s grant of summary judgment on
the diabetic caregivers’, Harris County’s, and Rossi’s motions.

                                              II.
      A movant shall prevail on summary judgment where he “shows that
there is no genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law.” 5 A factual issue is genuine if the summary
judgment record provides evidence on which a reasonable jury could return a
verdict for the nonmoving party, and is material if the resolution of the issue
in favor of one party might affect the outcome of the suit under governing law. 6



      5   FED. R. CIV. P. 56(a).
      6   Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
                                              11
    Case: 17-20435        Document: 00514849161         Page: 12     Date Filed: 02/25/2019



                                        No. 17-20435
Where the movant demonstrates that there is no genuine issue of material fact,
the non-movant bears the burden of demonstrating “specific facts showing that
there is a genuine issue for trial.” 7 The court reviews a district court’s order
granting summary judgment de novo, viewing the evidence and drawing all
factual inferences from the evidence in the light most favorable to the non-
movant. 8 The court construes pro se briefs liberally, though a litigant’s pro se
status does not relieve him of the procedural obligation to present evidence
creating a genuine issue of material fact to survive summary judgment. 9
                                              A.
      Public officials acting within the scope of their authority generally are
shielded from a suit for monetary damages by the doctrine of qualified
immunity. 10 To overcome qualified immunity, a plaintiff must establish that
the defendant officials violated a statutory or constitutional right and that the
right was “clearly established” at the time of the violation. 11 “A good-faith
assertion of qualified immunity alters the usual summary judgment burden of
proof, shifting it to the plaintiff to show that the defense is not available.” 12
      “The constitutional rights of a pretrial detainee flow from the procedural
and substantive due process guarantees of the Fourteenth Amendment.” 13
“This Court has recognized that there is no significant distinction between
pretrial detainees and convicted inmates concerning basic human needs such




      7   Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
      8   Smith v. Regional Trans. Auth., 827 F.3d 412, 417 (5th Cir. 2016).
      9   Perez v. Johnson, 122 F.3d 1067, at *1 (5th Cir. 1997) (unpublished).
      10   Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
      11   Id.
      12   King v. Handorf, 821 F.3d 650, 653 (5th Cir. 2016).
      13   Gibbs v. Grimmette, 254 F.3d 545, 548 (5th Cir. 2001).
                                              12
    Case: 17-20435           Document: 00514849161        Page: 13     Date Filed: 02/25/2019



                                           No. 17-20435
as medical care.” 14 A pretrial detainee’s due process rights are at least as great
as the Eighth Amendment protections available to a convicted prisoner. 15 “The
State’s exercise of its power to hold detainees and prisoners . . . brings with it
a responsibility under the U.S. Constitution to tend to essentials of their well-
being,” including an affirmative duty to provide adequate medical care. 16
Pretrial detainees may challenge the episodic acts or omissions of individual
officials where these officials act with deliberate indifference. 17 A prison official
acts with deliberate indifference where he or she knows of a substantial risk of
serious harm to the detainee, and disregards that risk. 18 The detainee need not
show that the risk was realized—that he was harmed—but only that the
official subjected him to the requisite level of risk. 19 “Deliberate indifference is
an extremely high standard to meet.” 20 An incorrect prescription or even a
“failure to alleviate a significant risk that [the official] should have perceived,
but did not” is insufficient to show deliberate indifference. 21 Disagreement
about medical treatment is not sufficient for a constitutional violation. 22
Rather the plaintiff must establish “that the officials refused to treat him,
ignored his complaints, intentionally treated him incorrectly, or engaged in




       14   Id.
       15   Hare v. City of Corinth, 74 F.3d 633, 638–39 (5th Cir. 1996) (en banc).
       16   Id.
       17   Id. at 644–45.
       18Dominov. Texas Dep’t of Criminal Justice, 239 F.3d 752, 755 (5th Cir. 2001) (citing
Farmer v. Brennan, 511 U.S. 825, 837 (1994)).
       19 See id. For this reason, we agree with Baughman that the district court erred in
citing the absence of harm in its finding of no constitutional violation.
       20   Id. at 756.
       21   Id. (alteration in the original).
       22   Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991).
                                                13
    Case: 17-20435         Document: 00514849161      Page: 14   Date Filed: 02/25/2019



                                       No. 17-20435
any similar conduct that would clearly evince a wanton disregard for any
serious medical needs.” 23
       Baughman challenges the acts and omissions of individual medical care
providers at the Jail, arguing that their failure to order thrice daily fingerstick
tests exposed him to substantial risks of severe hypoglycemia, including
diabetic coma or death. Individual defendants Michael Seale, Marcus Guice,
Bobby Davis, Sharon Lambi, and Beverly Howard are all Jail officials who
oversaw Baughman’s diabetes management at the Jail. They assert the
defense of qualified immunity. To survive summary judgment, Baughman
must rebut the defense by establishing on the summary judgment record that
a reasonable juror could find these defendants violated his constitutional
rights and acted unreasonably in light of clearly established law. 24 Baughman
“need not present ‘absolute proof,’ but must offer more than ‘mere
allegations.’” 25
       There is no dispute that hypoglycemia can in some situations result in
serious harms such as coma and death. If Baughman had been injected with
insulin indiscriminately—with complete ignorance as to his blood-glucose
level—and without an ex post means of mitigating hypoglycemia, this conduct
would expose him to a substantial risk of serious harm. These are not the facts
of this case. Upon arrival at the Jail, Baughman was evaluated by medical staff
who identified his diabetic condition, measured patterns of blood-glucose
fluctuation, considered his past treatment, and on that basis prescribed a
regimen of diabetes management. In the two and a half years Baughman spent
at the Jail before summary judgment, Baughman received regular attention



       23   Domino, 239 F.3d at 756.
       24   King, 821 F.3d at 654.
       25   Id.
                                           14
   Case: 17-20435       Document: 00514849161    Page: 15   Date Filed: 02/25/2019



                                  No. 17-20435
and evaluation of his diabetes management. He saw medical providers 78
times during both regularly scheduled appointments and walk-ins initiated by
Baughman. On several of these occasions his insulin regimen was adjusted,
each time informed by providers’ observation of blood-glucose level tests, both
during regularly scheduled quarterly tests and tests at other non-scheduled
times. To the extent Baughman’s diabetes was uncontrolled and required
adjustment of the insulin regimen, the record suggests that elevated blood-
glucose, not hypoglycemia, was the problem.
      On over 73 percent of his days in detention between his arrival and
September 2016, Baughman received no fingerstick test, a marked deviation
from the optimum. To determine whether the infrequency of fingerstick testing
exposed Baughman to a substantial risk of serious harm, we examine the
frequency of testing in the context of the Jail’s overall system of managing
Baughman’s diabetes. Other components of essential care as defined by
Baughman’s expert Madoff were indisputably present. Madoff opines “it must
be possible to have staff available at all hours that are trained to perform
glucose monitoring to detect and treat dangerous hypoglycemic events.” The
parties do not dispute that Baughman was under 24-hour surveillance, that he
had 24-hour access to medical services, with security guards and triage nurses
present in his cellblock in the event of a medical emergency. Jail nurses
administering insulin could identify signs of hypoglycemia, even without a
fingerstick test, and retained discretion to deny Baughman insulin had they
observed these signs.
      Madoff also observes that it was essential that Baughman have access
to glucose to fend off hypoglycemia if he perceived its early symptoms, such as
glucose tablets. The Jail did not supply inmates with tablets (these were kept
in the clinic), but nothing in Madoff’s report indicates that the Jail’s provision
of apples and oranges was an insufficient substitute. Nor did Baughman
                                       15
    Case: 17-20435    Document: 00514849161      Page: 16   Date Filed: 02/25/2019



                                  No. 17-20435
dispute that he was able to recognize the signs of hypoglycemia—albeit with
less precision than a fingerstick device—and mitigate them with sugary foods
provided by the insulin cart. The record indicates as much: for example, in
March 2015, Baughman refused to eat bran flakes he was served for breakfast,
and then told Chronic Care Clinic staff that he felt shaky, but that he “had
food/fruit given at insulin administration available for rescue if needed.”
Indeed,    the   record   indicates   that   Baughman    stockpiled   sources   of
supplemental glucose provided by the clinic. Complementing his ability to
perceive, communicate, and mitigate hypoglycemic symptoms, the record also
indicates that Baughman was aware that he could refuse insulin injections,
and that he exercised this option on at least one occasion.
       Madoff opines it was essential for Baughman to have “the ability to
instantaneously have his blood glucose assessed in the event of potential
hypoglycemia.” There is no dispute that the Jail provided Baughman this
opportunity. Nurses administering insulin could request fingerstick tests if
they suspected hypoglycemia or otherwise questioned the appropriateness of
an insulin dose. Even while Baughman submitted generic grievance forms
complaining about the general infrequency of fingerstick tests, he also
successfully requested additional tests using the “sick call” request process.
Neither Madoff’s opinions nor Baughman’s arguments counter Dr. Seale’s
position that the professional bodies’ recommended frequency of tests is not
generalizable to the Jail, given its 24-hour monitoring, regularity, and control
of diet.
       Negligence or medical malpractice do not suffice for a constitutional tort:
Baughman must point us to facts upon which a jury could find defendants’
“wanton disregard” for his diabetic condition. He has failed to do so. We agree
with the district court that Baughman has not established facts on which a
reasonable jury could find he was exposed to a substantial risk of the serious
                                        16
   Case: 17-20435          Document: 00514849161          Page: 17    Date Filed: 02/25/2019



                                        No. 17-20435
harms associated with untreated severe hypoglycemia. The record does not
support Baughman’s contention that his diabetes management forced a
“Hobson’s Choice” between hypoglycemic “Russian roulette” and potential
coma or death by hyperglycemia. We affirm the district court’s determination
that Baughman has established no constitutional violation, and the five
individual officials prevail on summary judgment.
                                               B.
      Municipalities can be sued directly under § 1983. 26 To succeed on a claim
against a municipality, a plaintiff must demonstrate that an official policy
promulgated by a municipal policymaker was the moving force behind a
violation of the plaintiff’s constitutional right. 27 A municipality can be liable
for failure to train its employees where this failure amounts to deliberate
indifference to the rights of persons with whom these employees come into
contact. 28 Here, Baughman argues Harris County’s official policy was the
moving force behind Jail staff’s constitutionally infrequent use of fingerstick
tests. Additionally, Baughman argues the same constitutional violation is
attributable to the County’s failure to train Jail medical staff. Thus
Baughman’s municipal claims are premised on the same alleged constitutional
violation addressed above. As with the claims against the individual Jail
officials, there is no basis for Baughman’s claim against Harris County. We
affirm the district court’s grant of summary judgment to Harris County.
                                               C.
      To prevail on a claim for unconstitutional retaliation, the plaintiff must
establish the exercise of a specific constitutional right, the defendants’ intent


      26   Connick v. Thompson, 563 U.S. 51, 60 (2011).
      27   Davidson v. City of Stafford, 848 F.3d 384, 395 (5th Cir. 2017).
      28   Connick, 563 U.S. at 61.
                                               17
   Case: 17-20435         Document: 00514849161         Page: 18     Date Filed: 02/25/2019



                                       No. 17-20435
to retaliate against him for the exercise of that right, a retaliatory act, and a
causal nexus between his exercise of the right and the retaliatory act. 29 To
establish causation, the plaintiff must establish that but for the retaliatory
motive, the defendants’ act of retaliation would not have occurred. 30 A plaintiff
must “produce direct evidence of motivation” or “allege a chronology of events
from which retaliation may plausibly be inferred.” 31 Where defendants move
for summary judgment, the plaintiff’s conclusory allegations with respect to
any of these four elements will not withstand the motion. 32
      Here, we need not look beyond the requirement of causation.
Baughman’s letter to the Texas Commission on Jail Standards was submitted
on March 30, 2015 and was received on April 6, 2015. Rossi, at Davis’s
instruction, imposed commissary restrictions on Baughman on April 13, 2015.
Baughman argues this is a chronology from which a reasonable juror could
infer retaliation. He is wrong. Standing alone, the chronology does not
eliminate the possibility of retaliation. But the dates cannot be viewed alone.
To the extent there could have been a retaliatory motive, this would have
originated from Seale, the only defendant who may have known of Baughman’s
letter—Seale does not remember the letter, but conceded that, as part of his
role on the TCJS, he likely would have reviewed it. Though Seale, as Executive
Medical Director, had authority to impose commissary restrictions, he had no
involvement in         the    restriction   imposed     on       Baughman.   Baughman’s
commissary restriction was imposed by Rossi at the instruction of Davis.
Neither Davis nor Rossi were aware of the letter’s existence. It is unclear how



      29   McDonald v. Steward, 132 F.3d 225, 231 (5th Cir. 1998).
      30   Id.
      31   Woods v. Smith, 60 F.3d 1161, 1166 (5th Cir. 1995).
      32   Id.
                                              18
   Case: 17-20435         Document: 00514849161        Page: 19        Date Filed: 02/25/2019



                                       No. 17-20435
Baughman understands the alleged retaliation to have occurred in these
circumstances, but all we can conclude is that the district court was correct
that on these facts no reasonable juror could find retaliation. We affirm the
grant of summary judgment to Seale, Davis, and Rossi on this claim.
                                             D.
      Baughman also brings a state-law tort claim against Harris County,
arguing that the County violated the medical standard of care in its treatment
of his diabetes, and is liable for the negligence of the Jail’s healthcare
providers. The district court held that this claim was barred by sovereign
immunity, because it did not fall within the Texas Tort Claims Act’s narrow
statutory waiver of immunity for “personal injury . . . so caused by . . . use of
tangible personal . . . property. . . if the governmental unit would, were it a
private person, be liable to the claimant according to Texas law.” 33 Baughman
argues that the district court erred in finding his claim barred, because Jail
officials’ use of insulin and medical equipment constitutes a use of tangible
property under the Act.
      Baughman’s argument fails. The district court was correct to find that
the use of drugs and medical equipment while treating an inmate in its custody
is not enough to satisfy the Texas Tort Claim Act’s use of tangible property
requirement. In Texas Department of Criminal Justice v. Miller, the Texas
Supreme Court clarified as much: “[d]octors in state medical facilities use some
form of tangible personal property nearly every time they treat a patient,” but
the state has not waived sovereign immunity “in every case in which medical
treatment is provided by a public facility.” 34 Rather, “[u]sing that property




      33   TEX. CIV. PRAC. & REM. CODE § 101.021(2).
      34   51 S.W.3d 583, 588 (Tex. 2001) (quotation marks omitted).
                                             19
   Case: 17-20435    Document: 00514849161      Page: 20   Date Filed: 02/25/2019



                                 No. 17-20435
must have actually caused the injury.” 35 Baughman has not demonstrated that
a reasonable juror could find that the Jail staff’s use of insulin and other
medical equipment caused him injury. The district court correctly granted
summary judgment to the County on this claim.

                                      III.
      Baughman has moved for appointment of counsel on appeal.
Appointment is not necessary here, and the motion is denied.

                                      IV.
      We AFFIRM the district court’s grants of summary judgment on the
basis of qualified immunity to individual officials Seale, Guice, Davis, Howard,
and Lambi on the medical care claim; and to Seale, Davis, and Rossi on the
retaliation claim; as well as the district court’s grant to Harris County on
claims for municipal liability and the negligence claim; and dismiss the case.
Baughman’s motion for appointment of counsel is DENIED.




      35   Id.
                                      20
