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

                                                FILED
                                                                November 5, 2009
                                No. 09-40273
                              Summary Calendar                Charles R. Fulbruge III
                                                                      Clerk

MICHAEL A KRAUSE,

                                     Plaintiff - Appellant

v.

SHERIFF GEAN LEONARD, JUDGE LONNIE COX, CHERYL MOFFETT,
DISTRICT ATTORNEY KURT SISTRUNK, CORRECTIONAL MEDICAL
SERVICES,

                                     Defendants - Appellees




                 Appeal from the United States District Court
                      for the Southern District of Texas
                           USDC No. 3:05-cv-00213


Before HIGGINBOTHAM, CLEMENT, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
      Michael A. Krause, Texas prisoner # 1459103, filed a 42 U.S.C. § 1983
claim alleging that various local officials had violated his constitutional rights
during his stay in the Galveston County Jail. In particular, Krause complains
that Sheriff Gean Leonard allowed other prisoners regularly to beat Krause and



      *
      Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
                                  No. 09-40273

that Nurse Cheryl Moffett failed adequately to treat his various maladies. The
district court granted summary judgment in full to all defendants – including
Sheriff Leonard and Nurse Moffett – and we now affirm.


                               I. BACKGROUND


      Krause, convicted of various sex crimes, currently sits in a Texas prison.
His complaint, though, arises out of the nearly two years he spent awaiting trial
in the Galveston County Jail. The story begins in the summer of 2003, when
Krause befriended a teenage boy. Krause began home-schooling the boy and
even invited the boy to live in Krause’s trailer home. In December, Krause
traveled with the boy to Wisconsin. While the two vacationed in Wisconsin, the
boy’s mother learned that Wisconsin authorities previously had investigated
Krause for child pornography and child abuse. The boy’s mother immediately
arranged for the boy to fly home to Texas. Once the boy returned, he and his
mother broke into Krause’s trailer to retrieve the boy’s possessions. The pair,
however, also found in Krause’s trailer various media containing images of child
pornography. The boy and his mother took these images and turned them over
to Texas police.1
      Krause, too, soon made his way back to Texas. But, on December 9, 2003,
the state of Wisconsin issued a Violation Warrant stating that Krause had
“absconded from probation.” The next day, Texas authorities in Galveston
arrested Krause as a fugitive from justice and held him without bond as they
sorted out the Wisconsin charge. On January 6, 2004, though, the state of Texas
issued its own warrant for Krause’s arrest for possession of child pornography.
Consequently, Galveston Country Jail continued to hold Krause, now on a



      1
          See generally Krause v. Texas, 243 S.W.3d 95, 98-101 (Tex. Crim. App.
2007).

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$50,000 bond. In November of 2005, a Texas jury convicted Krause of possession
of child pornography, and the court of appeals later affirmed his nine-year term
of imprisonment.
      This narrative, though, all serves as backdrop to Krause’s § 1983 claim in
federal court, in which he alleges a litany of abuses that occurred during his
confinement in Galveston County Jail. We, like the district court did, liberally
construe Krause’s pro se complaint 2 – in which Krause seeks both compensatory
and equitable relief. First, he challenges the validity of the Wisconsin warrant
and his confinement preceding the January 6 issuance of the Texas warrant.
Second, Krause contends that Texas authorities violated his right to a speedy
trial by keeping him locked-up for two years before his conviction. Third, Krause
states that while he waited in jail unknown perpetrators stole valuable
possessions from his trailer because Texas authorities failed properly to secure
his belongings. Fourth, he accuses his jailors – and Sheriff Leonard in particular
– of failing to protect him from attack by other prisoners. And fifth, Krause
asserts that the jail’s medical staff – and Nurse Moffett in particular –
disregarded his serious medical needs.


                                  II. ANALYSIS


      Even though we review Krause’s complaint de novo and in a light most
favorable to him,3 we find no merit in any of his accusations.




      2
          See Morrow v. FBI, 2 F.3d 642, 643 n.2 (5th Cir. 1993).
      3
          See Connors v. Graves, 538 F.3d 373, 376 (5th Cir. 2008).

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                                A. Unlawful Arrest


      Krause claims that the Texas authorities had no right to arrest him in the
first instance. “Government officials performing discretionary functions are
entitled to qualified immunity from civil liability to the extent that their conduct
does not violate clearly established statutory or constitutional rights of which a
reasonable person would have known.” 4 Texas officials arrested Krause as a
fugitive from justice on December 10, 2003. Krause, though, claims that he
never fled in the first place, because he had received a travel pass in Wisconsin
before traveling back to Texas in December of 2003. Wisconsin, though, issued
a warrant for his arrest on December 9, 2003. Krause presents no evidence to
show that the Texas authorities had reason to doubt the validity of the
Wisconsin warrant. Consequently, Krause cannot show that the Texas police
acted unreasonably in violation of his rights.


                                  B. Speedy Trial


      Krause urges that – by keeping him in jail for almost two years awaiting
trial on the Texas child pornography charges – the Texas authorities violated his
Sixth Amendment right to a speedy trial. Subject to certain exceptions, Heck v.
Humphrey directs lower federal courts to dismiss any § 1983 action that – if
successful – would necessarily imply the invalidity of the claimant’s criminal
conviction.5     After waiting in jail, Krause stood trial for possessing child
pornography. A jury convicted him, and Krause is now serving the resultant
nine-year prison sentence.      A determination here in Krause’s favor would


      4
       Longoria v. Texas, 473 F.3d 586, 592 (5th Cir. 2006) (internal quotations
and citations omitted).
      5
          512 U.S. 477, 486-87 (1994).

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necessarily implicate the invalidity of his otherwise unchallenged conviction, so
Heck bars his speedy-trial claim.6


                                C. Loss of Property


      Krause blames the police both for losing valuable possessions from his
impounded automobile and for allowing thieves to steal from his trailers during
his time in jail. As the district court artfully explained, Krause’s claims are not
cognizable under § 1983. As long as the state provides for a meaningful post-
deprivation remedy, then no constitutional violation occurs when a state
employee negligently or intentionally deprives a prisoner of property.7         “In
Texas, as in many other states, the tort of conversion fulfills this requirement.” 8




      6
       See Anderson v. Galveston County Dist. Clerk, 91 F. App’x 925, 926 (5th
Cir. 2004) (“[Claimant] argues that the district court abused its discretion in
dismissing the complaint as frivolous pursuant to Heck v. Humphrey . . . because
his complaint challenged the length of his pre-trial detention and not his
conviction. . . . [Claimant’s] complaint, given its most liberal construction,
sought damages for the denial of his Sixth Amendment right to a speedy trial.
A determination that [his] Sixth Amendment right to a speedy trial was violated
would necessarily implicate the invalidity of his conviction, and [he] has not
shown that his conviction has been overturned or otherwise declared invalid.”)
(unpublished); Josey v. Tex. Dep't of Pub. Safety, 101 F. App’x 9, 10 (5th Cir.
2004) (“[B]y raising his speedy-trial argument, Josey is contesting his continued
confinement.”) (unpublished).
      7
        See Hudson v. Palmer, 468 U.S. 517, 533 (1984) (“[W]e hold that an
unauthorized intentional deprivation of property by a state employee does not
constitute a violation of the procedural requirements of the Due Process Clause
of the Fourteenth Amendment if a meaningful postdeprivation remedy for the
loss is available.”).


      8
          Murphy v. Collins, 26 F.3d 541, 544 (5th Cir. 1994).

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                                   D. Failure to Protect


          Krause alleges that his jailors deliberately failed to protect him both from
attacks by other inmates – including a group called the Gang Gladiators 9 – and
from spiders that perpetually hounded him. He emphasizes on appeal that the
jail’s overcrowding – which regularly forced three men into a two-person cell –
exacerbated his plight.10
          As noted by the district court, a pretrial detainee can only succeed on a
damages claim under § 1983 for failure to protect by demonstrating that prison
officials have shown “deliberate indifference” to the harm.11 The Supreme Court
has explained precisely what “deliberate indifference” means: “[A] prison official
may be held liable under the Eighth Amendment for denying humane conditions
of confinement only if he knows that inmates face a substantial risk of serious
harm and disregards that risk by failing to take reasonable measures to abate
it.” 12
          Krause presents nothing on appeal to show that the jail officials
disregarded a serious risk to his safety. To the contrary – and as described by
the district court – the record uniformly reflects that the jail officials responded
to Krause’s requests for cell transfer based on perceived threats to his well being.


          9
              R. at 442.
          10
        Although Krause does not seem to make a freestanding overcrowding
claim, to the extent that we could read Krause’s pro se complaint liberally to
allege one, he would not overcome summary judgment. Indeed, he has not
presented any evidence that putting three men in a two-person cell “inflicts
unnecessary or wanton pain or is grossly disproportionate to the severity of
crimes warranting imprisonment.” Rhodes v. Chapman, 452 U.S. 337, 348
(1981) (holding that double-celling inmates did not violate the Eighth
Amendment).
          11
               Neals v. Norwood, 59 F.3d 530, 533 (5th Cir. 1995).
          12
               Farmer v. Brennan, 511 U.S. 825, 848 (1994).

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Krause, therefore, has failed to raise a genuine dispute of material fact in order
to overcome summary judgment.


                                 E. Failure to Treat


      Finally, Krause alleges that the medical staff at Galveston County Jail did
not adequately treat his medical needs – in part by refusing to refer him to
proper specialists.      The Eighth Amendment forbids prison officials from
displaying deliberate indifference toward prisoners’ medical needs.13       Mere
negligence, though, is not enough.14 Rather, “the legal conclusion of deliberate
indifference . . . must rest on facts clearly evincing wanton actions on the part
of the defendants.” 15 Krause makes no such showing. In fact, as described
thoroughly by the district court, the record shows that the jail’s medical staff
responded diligently to Krause’s myriad medical requests.16 Krause received a
“great deal of care and attention” and – consequently – cannot show that the




      13
           Estelle v. Gamble, 429 U.S. 97, 103-05 (1976).
      14
           Id. at 106.
      15
       Johnson v. Treen, 759 F.2d 1236, 1238 (5th Cir. 1985) (internal
quotations and citations omitted).
      16
       On appeal, Krause directs the court to a series of alarmist requests he
made of the medical staff from January through March of 2005. Krause
complained of severe headaches and knots in his neck – for which he could not
“stand the pain.” But an independent review of the record shows that the
medical staff attended to Krause on January 28 (Medical Record at 458), on
February 3 (Id. at 456), on February 17 (Id. at 383), on February 18 (Id. at 529),
and on March 18 (Id. at 455) – at which time the medical staff could not locate
any knot in Krause’s neck. Far from ignoring Krause’s needs, the medical staff
over time patiently treated Krause for such self-reported ailments as “NAILS
LIKE WOLF” (Id. at 471-72) and a sore “that seems to be rotting the flesh” (Id.
at 469-70).

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medical staff caused “unnecessary and wanton infliction of pain repugnant to the
conscience of mankind.”17


                                III. CONCLUSION


      Krause’s damages claims have no basis in either law or fact. Additionally
– because Texas authorities transferred Krause out of Galveston County Jail
after his conviction – the district court properly dismissed as moot his claims for
equitable relief relating to his confinement in Galveston.18 We thus AFFIRM the
district court’s grant of summary judgment to all defendants on all claims.
Krause’s Motion for Appointment of Counsel19 and his Request for Stay – as well
as any other outstanding motions – are DENIED as moot.




      17
           Norton v. Dimazana, 122 F.3d 286, 291 (5th Cir. 1997).
      18
        See Herman v. Holiday, 238 F.3d 660, 665 (5th Cir. 2001) (citing Cooper
v. Sheriff, Lubbock County, Tex., 929 F.2d 1078, 1084 (5th Cir. 1991)).
      19
       Even if Krause’s Motion for Appointment of Counsel were not moot, we
would deny it – as his case is neither complex nor exceptional. See Cupit v.
Jones, 835 F.2d 82, 86 (5th Cir. 1987).

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