     Case: 13-60707      Document: 00512989781         Page: 1    Date Filed: 04/01/2015




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

                                                                                   FILED
                                                                                 April 1, 2015
                                    No. 13-60707
                                  Summary Calendar                              Lyle W. Cayce
                                                                                     Clerk


PATRICIA FORTUNE, for the benefit of herself and others for the wrongful
death of Devin Daniel Fortune,

              Plaintiff - Appellant

v.

BILLY MCGEE, individually and in his capacity as Sheriff of Forrest County,
Mississippi; FORREST COUNTY, MISSISSIPPI; RANDALL SMITH,
Individually and in his official capacity as deputy with the Forrest County
Sheriff's Department; SKYE JOHNSON,

              Defendants - Appellees



                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                              USDC No. 2:12-CV-88


Before REAVLEY, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Patricia Fortune brought a wrongful death claim under 42 U.S.C. § 1983,
and state law claims for negligence and emotional distress, against Forrest
County, Mississippi, and various county officials. The United States District



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 13-60707
Court for the Southern District of Mississippi granted the defendants’ motion
for summary judgment. We AFFIRM.
      In August 2009, Devin Daniel Fortune, the plaintiff’s son, was arrested
and charged with felony homicide. Until his death, he remained in the Forrest
County Regional Jail as a pretrial detainee. On March 28, 2011, he submitted
a request for medical care due to his sinus and breathing problems, a sore
throat, and a fever that had lasted for three days. Defendant Skye Johnson,
the nurse on duty at the jail, examined Fortune and noticed his tonsils were
swollen and had white patches. She did not listen to Fortune’s chest. Johnson
called the jail physician, who prescribed an antibiotic and antihistamine. On
March 31 at 10:00 p.m., defendant Deputy Sheriff Randall Smith made rounds
on Fortune’s floor and spoke with Fortune. Smith claimed he did not appear
ill or in distress. On another walk-through at 12:45 a.m., Smith was told by
inmates that Fortune was having trouble breathing.        When Smith found
Fortune, he was grabbing his chest. Fortune stated, “I just can’t breathe.”
Smith requested an ambulance. With the assistance of another inmate, he
carried Fortune to the first floor.   An ambulance transported Fortune to
Forrest General Hospital. He was in full cardiac arrest when he arrived at the
hospital. He was pronounced dead at 1:50 a.m. An autopsy determined the
cause of death to be acute and chronic pneumonia.
      The plaintiff brought suit against the county, Sheriff Billy McGee,
Smith, and Johnson. The parties agreed to proceed before a magistrate judge,
who subsequently granted summary judgment to the defendants on all claims.
                               DISCUSSION
      “We review a district court’s ruling on a motion for summary judgment
de novo and apply the same legal standards as the district court.” Bellard v.
Gautreaux, 675 F.3d 454, 460 (5th Cir. 2012) (citation omitted). Summary
judgment is proper where the “movant shows that there is no genuine dispute
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                                       No. 13-60707
as to any material fact and the movant is entitled to judgment as a matter of
law.” FED. R. CIV. P. 56(a).
       Our best understanding of the plaintiff’s arguments on appeal is that the
defendants are liable for wrongful death due to inadequate medical care. The
plaintiff asserts that Johnson and Smith were deliberately indifferent to
Fortune’s serious medical needs because Johnson treated him for only a fever
and sore throat, and Smith did not check on him with sufficient frequency. As
to McGee, the plaintiff argues he failed to establish protocol or training
procedures for inmate medical emergencies. 1
       The Fourteenth Amendment requires that state officials not disregard
the “basic human needs” of pretrial detainees, which includes medical care.
Hare v. City of Corinth, Miss., 74 F.3d 633, 650 (5th Cir. 1996). An official
violates this right when he or she responds to a detainee’s serious medical
needs with deliberate indifference. Id. Deliberate indifference is shown where
an official “refuse[s] to treat [a detainee], ignore[s] his complaints,
intentionally treat[s] him incorrectly, or engage[s] in any similar conduct that
would clearly evince a wanton disregard for any serious medical needs.” See
Sama v. Hannigan, 669 F.3d 585, 590 (5th Cir. 2012) (citation and quotations
omitted).     “[A]cts of negligence or medical malpractice do not constitute
deliberate indifference . . . . ” Id. (citation omitted). Supervisory prison officials
may be held liable for a Section 1983 violation only if there was “personal
involvement in the constitutional deprivation, or . . . a sufficient causal
connection between the supervisor’s wrongful conduct and the constitutional



1 It does not appear that the plaintiff is appealing the district court’s grant of summary
judgment to Forrest County. Regardless, the district court correctly held that to maintain a
claim against a municipality there must be evidence of a policymaker and a policy that was
the moving force behind the constitutional violation at issue. See Monell v. Dep’t of Soc.
Servs., 436 U.S. 658, 694 (1978). Because there was no constitutional violation, the plaintiff’s
claim against the county was properly dismissed.
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violation.” Thompkins v. Belt, 828 F.2d 298, 304 (5th Cir. 1987) (citation
omitted). “It is facially evident that this test cannot be met if there is no
underlying constitutional violation.” Rios v. City of Del Rio, Tex., 444 F.3d 417,
425 (5th Cir. 2006) (citation omitted).
      The uncontroverted evidence is that on the same day Fortune requested
medical care, Johnson examined him, called a physician, and administered
medication. Her failure to listen to Fortune’s chest was, at most, negligence or
medical malpractice, which does not rise to the level of deliberate indifference.
See Sama, 669 F.3d at 590. As to Smith, he called for an ambulance as soon
as he realized Fortune was in distress, and helped Fortune to the first floor so
he could be transported to the hospital.       This does not “evince a wanton
disregard” for Fortune’s serious medical needs.       See id.   Because neither
Johnson nor Smith refused to treat Fortune, ignored his complaints, or
intentionally treated him incorrectly, there is no genuine dispute of material
fact as to whether they were deliberately indifferent to Fortune’s serious
medical needs.
      Even if McGee failed to establish medical protocol and training
procedures, such a failure would not be actionable because Fortune’s medical
care did not fall short of constitutional standards. See Rios, 444 F.3d at 425.
      To the extent the plaintiff appeals the grant of summary judgment to the
defendants on her state law claims, the district court correctly held the claims
were barred by a Mississippi statute that prohibits jail inmates from suing
governmental employees who were acting within the scope of their
employment. See MISS. CODE ANN. § 11-46-9 (1)(m).
      AFFIRMED.




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