     Case: 12-60138       Document: 00512179007         Page: 1     Date Filed: 03/19/2013




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

                                                                            FILED
                                                                          March 19, 2013
                                     No. 12-60138
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

JAMES WILLIE STEVENSON,

                                                  Plaintiff-Appellant

v.

OFFICER YOUNG,

                                                  Defendant-Appellee


                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 3:09-CV-464


Before KING, CLEMENT, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       James Willie Stevenson, Mississippi prisoner # M2199, appeals the
decision of the magistrate judge awarding summary judgment in favor of Officer
Howard Young on Stevenson’s 42 U.S.C. § 1983 complaint. In that complaint,
Stevenson alleged that Officer Young had been deliberately indifferent to his
serious medical needs when he purportedly caused Stevenson’s premature
release from the hospital despite the opinion of Young’s treating physician that
his wound necessitated surgery.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                 No. 12-60138

      We review a summary judgment ruling de novo, using the same standard
employed by the district court. Carnaby v. City of Houston, 636 F.3d 183, 187
(5th Cir. 2011). Summary judgment is proper “if the movant shows that there
is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” FED. R. CIV. P. 56(a). If the moving party shows
that the nonmoving party presented insufficient evidence in support of his
allegations, the nonmovant is required to demonstrate the existence of a genuine
issue for trial by coming forward with specific facts. Jones v. Lowndes County,
Miss., 678 F.3d 344, 348 (5th Cir. 2012). Such facts, however, must be comprised
of more than “[c]onclusional allegations and denials, speculation, improbable
inferences, unsubstantiated assertions, and legalistic argumentation.”        Id.
(internal quotation marks and citation omitted).
      The deliberate indifference standard requires a prisoner to establish that
the defendant “acted with subjective deliberate indifference to [the prisoner’s]
need for medical care.” Brown v. Strain, 663 F.3d 245, 249 (5th Cir. 2011).
(internal quotation marks and citation omitted). To establish that Officer Young
acted with subjective deliberate indifference, Stevenson must show that:
(1) Officer Young had “subjective knowledge of facts from which an inference of
substantial risk of serious harm could be drawn;” (2) Officer Young “actually
drew that inference;” and (3) Officer Young’s response to the risk indicates that
he “subjectively intended that harm to occur.” Id. (internal quotation marks and
citation omitted).
      The parties consented to proceed before a magistrate judge.            The
magistrate judge found that as a pretrial detainee, Stevenson had a Fourteenth
Amendment due process right to medical care; however, he had produced no
evidence that Officer Young actually instructed the physician not to perform the
operation or that Young had in any way interfered with the surgery.
Additionally, the magistrate judge pointed out that Stevenson had produced no
evidence that he was subjected to a serious risk of medical harm by the

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                                  No. 12-60138

cancellation of the surgery or that Officer Young had actual knowledge of such
a risk. Consequently, the magistrate judge held, Officer Young was entitled to
judgment as a matter of law.
      Stevenson argues that the grant of summary judgment was erroneous
because there were genuine issues of material fact in dispute, namely what
Officer Young and Stevenson’s treating physician discussed about his condition
outside of Stevenson’s presence. Stevenson’s deposition testimony confirms that
he did not overhear the conversation between Officer Young and his physician,
and that Officer Young did not remove him without discharge attention and
treatment by hospital personnel. Stevenson’s claim reduced factually, therefore,
to his recollection that Officer Young later told him that he, Officer Young, had
told the physician the county did not want to pay for Stevenson’s surgery.
Stevenson offers no medical evidence that surgery was necessary or that its
postponement or cancellation put Stevenson at risk of serious harm. Nor does
he offer evidence from which a factfinder reasonably could infer that Officer
Young knew of a risk of serious harm and intentionally disregarded it. The
hospital’s discharge indicates, to the contrary, that Stevenson was not at risk of
serious harm. Because Officer Young, as the moving party, has shown that
Stevenson presented insufficient evidence in support of his allegations,
Stevenson bears the burden of demonstrating the existence of a genuine issue
for trial by coming forward with specific facts. See Jones, 678 F.3d at 348.
Stevenson has failed in this regard, insomuch as his facts are comprised of
conclusional allegations, speculation, and unsubstantiated assertions. See id.
      Finally, Stevenson argues that Officer Young was not entitled to qualified
immunity. The magistrate judge held that there was no constitutional violation
as a matter of law because Stevenson had failed to demonstrate that Officer
Young had acted with deliberate indifference to a substantial risk of serious
harm. The order did not comment on whether Officer Young was entitled to
qualified immunity.

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                                  No. 12-60138

      “The qualified immunity defense has two prongs: whether an official’s
conduct violated a constitutional right of the plaintiff; and whether the right was
clearly established at the time of the violation.” Brown v. Callahan, 623 F.3d
249, 253 (5th Cir. 2010). When the defendant moves for summary judgment
based on qualified immunity, it is the plaintiff’s burden to demonstrate that all
reasonable officials similarly situated would have then known that the alleged
acts of the defendant violated the United States Constitution. Thompson v.
Upshur County, TX, 245 F.3d 447, 460 (5th Cir. 2001). This is distinguishable
from the burden of establishing a genuine issue as to the defendant’s
deliberately indifferent subjective state of mind. Id.
      We have recognized that summary judgment is proper on the basis of
qualified immunity when the evidence does not show that the appellee was
aware of an “unjustifiably high risk” to a pretrial detainee. Tamez v. Manthey,
589 F.3d 764, 770 (5th Cir. 2009) (internal quotation marks and citation
omitted). Stevenson’s inability to establish that Officer Young had either an
objective or subjective knowledge of the risk of serious harm or that he intended
to cause such harm renders his summary judgment motion meritless whether
its denial was based on § 1983 liability or a qualified immunity defense. See
Brown, 663 F.3d at 249; Thompson, 245 F.3d at 460.
      Stevenson has also moved for the appointment of counsel; however, he has
failed to establish the existence of exceptional circumstances warranting such
relief in light of the following: (1) the case is not complex and involves one claim
against one defendant; (2) he has demonstrated in the district court and on
appeal an ability to present his case adequately; (3) he is capable of investigating
his case adequately; and (4) the type of evidence that would be presented by both
parties would not be difficult to understand. See Ulmer v. Chancellor, 691 F.2d
209, 212, 213 (5th Cir. 1982). His motion is therefore meritless.
      AFFIRMED; MOTION FOR APPOINTMENT OF COUNSEL DENIED.



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