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

                                                 FILED
                                                                         December 2, 2009

                                     No. 09-40310                      Charles R. Fulbruge III
                                   Summary Calendar                            Clerk



HERIBERTO TAMEZ, Individually and On behalf of the Estate of Daniel
Tamez; MARIA TRINIDAD TAMEZ, Individually; APRIL GARZA, as Next
Friend of E.E.T., a Minor,


                                                   Plaintiffs - Appellants

v.

GERALD MANTHEY, Individually and in his Official Capacity; PEDRO H.
IBARRA, Individually and in his Official Capacity; POLICE CHIEF DANIEL
CASTILLO, Individually and in his Official Capacity; MIGUEL BERNAL,
Individually and in his Official Capacity; JAIME RODRIGUEZ, Individually
and in his Official Capacity; THE CITY OF HARLINGEN; RICK ELIZONDO,
Individually and in his Official Capacity,


                                                   Defendants - Appellees




                   Appeal from the United States District Court
                        For the Southern District of Texas
                             USDC No. 07-CV-00213


Before KING, STEWART, and HAYNES, Circuit Judges.
PER CURIAM:*


       *
        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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
                                  No. 09-40310

       Daniel Tamez was a pretrial detainee of the City of Harlingen. He died
while in the custody of the city from acute cocaine intoxication when a bag of
cocaine that he swallowed before his arrest burst in his intestines. The Tamez
Family then brought this suit under 42 U.S.C. § 1983 on Tamez’s behalf, alleging
that various police officers and prison officials were deliberately indifferent to
Tamez’s need for medical care. Appellees’ moved for summary judgment on the
Tamez Family’s claim, and the district court granted their motion for summary
judgment. The Tamez Family then appealed the district court’s judgment. We
AFFIRM.
                 I. FACTS AND PROCEDURAL HISTORY
       On January 18, 2006, at approximately 1:30 a.m., an officer from the
Harlingen Police Department attempted to pull Daniel Tamez over after he
disregarded a stop sign at high speed. Although Tamez initially pulled over, he
decided to run from the police, causing multiple officers to pursue him for
approximately two and a half miles. The officers eventually caught Tamez and
arrested him.
       After Tamez was arrested, he was transported to the Harlingen City Jail
(“City Jail”). Tamez was aggressive and combative during the trip to the City
Jail, and the transporting officers had to carry him into the jail. Once inside,
Tamez was searched, and the officers discovered a short straw commonly used
for cocaine in Tamez’s pants but no drugs. The police then filled out an intake
form for Tamez and asked him several health questions. In response to the
officers’ questions, Tamez told the officers that he was not on drugs, that he was
diabetic, and that he was currently under the care of a physician. Later that
same morning, during his appearance before a magistrate, Tamez appeared to
be aware of what was occurring, and he immediately answered all the questions



R. 47.5.4.

                                        2
                                  No. 09-40310

asked by the judge. After his appearance before the judge, Tamez was returned
to the City Jail. During this time, Tamez never advised any of his jailers that
he felt ill, that he needed any medical treatment, or that he was injured.
        That afternoon, defendants Jaime Rodriguez (“Detective Rodriguez”) and
Pedro Ibarra (“Detective Ibarra”) transported Tamez to the Cameron County
Carrizales-Rucker Detention Center (“County Jail”). While waiting to be booked,
Tamez complained to one of the county jailers that he wanted to see a doctor
because he felt tired. The jailer then summoned the county nurse on duty, who
came and examined Tamez.         While waiting for the nurse to arrive, Tamez
informed the jailer and Detective Rodriguez that he might have a sexually
transmitted disease (“STD”).
        Felipe Esquivel (“Nurse Esquivel”) was the county intake nurse on duty
on January 18, 2006, and he was the nurse that examined Tamez. County
intake nurses are tasked with screening detainees brought to the County Jail to
determine whether the detainees need a “medical clearance” before they can be
incarcerated in the jail. The term “medical clearance” is an administrative term
meaning that a detainee is medically cleared for incarceration. Nurse Esquivel
testified that if a nurse finds anything abnormal with a detainee they reject the
detainee pending medical clearance. Several officers and jailers testified that
a medical clearance can be requested for many reasons, including a cold, a
cough, cuts, or a hurt ankle or wrist; no evidence to the contrary was offered.
Harlingen Police Chief Daniel Castillo (“Chief Castillo”) testified that a rejection
pending medical clearance does not by itself tell officers that a detainee is in
need of immediate medical care. Nurse Esquivel also stated that, in addition to
rejecting a person pending medical clearance, a nurse may call 911 or summon
a County Jail physician if a detainee is in need of urgent or emergency medical
care.



                                         3
                                  No. 09-40310

      Nurse Esquivel did not find that Tamez was in need of either urgent or
emergency medical care.      He did, however, find that Tamez’s pupils were
maximally dilated, which was sufficient to reject him pending medical clearance.
Nurse Esquivel then informed Detectives Ibarra and Rodriguez of Tamez’s
rejection. Nurse Esquivel told the detectives that Tamez had dilated pupils and
needed to be medically cleared before the County Jail would incarcerate him.
The nurse suggested that the detectives take Tamez to the Valley Regional
Medical Center (“VRMC”), because it was the closest 24-hour facility with a
physician on-call and an emergency room where Tamez could receive any
necessary medical treatment before returning to the County Jail.           Nurse
Esquivel routinely referred every detainee pending medical clearance to VRMC.
      During Nurse Esquivel’s examination of Tamez, he asked Tamez whether
he had taken drugs or was under the influence of drugs. Tamez denied taking
drugs. If he had admitted that he was under the influence of drugs, Nurse
Esquivel stated that he would not have rejected Tamez pending medical
clearance; instead, he would have placed Tamez in isolation and treated him
according to the county’s drug and alcohol protocol.
      Nurse Esquivel testified that he expected the detectives to take Tamez to
the hospital immediately.      However, he never testified that he told the
detectives to take him to the hospital immediately or that there was any urgency
to his instructions to take Tamez to the hospital.
      The detective returned Tamez to the City Jail.        The trip to jail was
unremarkable. The detectives turned Tamez over to the custody of Harlingen
jailers Rick Elizondo (“Jailer Elizondo”) and Miguel Bernal (“Jailer Bernal”), who
are both defendants in this action after informing the jailers that Tamez had
been rejected pending medical clearance. After they turned Tamez over, the
detectives no longer had any responsibility for Tamez.



                                        4
                                 No. 09-40310

      Jailer Elizondo did not notice anything wrong with Tamez when he was
returned to the City Jail, so he placed Tamez in his cell. Both Jailers Elizondo
and Bernal checked on Tamez every twenty minutes. During their rounds, both
jailers observed Tamez talking on the phone, which was a normal activity.
Tamez did not sleep during their shift, and the jailers did not observe anything
wrong with Tamez. Tamez never told either jailer that he was ill or that he
needed to see a doctor. The only thing he requested was water, which was given
to him. On Jailer Elizondo’s final round, he again observed nothing out of the
ordinary, and he told the jailers on the next shift that Tamez needed a medical
clearance.
      After an uneventful night, Jailer Estela Lozano (“Jailer Lozano”) was on
duty during which she checked on Tamez every twenty minutes. Tamez was
asleep the first four times Jailer Lozano checked on him, and his clothes were
not wet at the time. During a later round, Jailer Lozano noticed that Tamez’s
clothes were wet and that he was awake. When Jailer Lozano asked Tamez why
his clothes were wet, he replied that he was hot. The wet clothes were the only
“strange” thing that Jailer Lozano noticed about Tamez.
      Jailer Lozano then asked Tamez why he had been sent back from the
County Jail. Tamez responded that someone at the County Jail told him that he
needed some blood work done before they would admit him. Jailer Lozano then
asked one of her supervisors about obtaining a medical clearance for Tamez.
Her supervisor called Harlingen police officer Arturo Gonzalez (“Officer
Gonzalez”) to take Tamez to the hospital. Tamez was able to exit his cell without
any problem, and his trip to the hospital was without incident.
      Officer Gonzalez drove Tamez to the Harlingen Medical Center (“HMC”)
to receive treatment. Nurse Marina Garza (“Nurse Garza”) triaged Tamez at
9:42 a.m. on January 19, 2006.     Tamez was restless during Nurse Garza’s
examination, and he told her that he had chest pains from working out and that

                                       5
                                      No. 09-40310

the pain was a one on a scale of one to ten. He also denied using drugs. Tamez
was then examined by an emergency room doctor. Tamez was also sent to
radiology for x-rays, and he returned from radiology at approximately 10:35 a.m.
       Around 11:00 a.m., Tamez began suffering seizures. Medical personnel
attempted to treat him and gave him medication. At 11:48 a.m. Tamez stopped
breathing. Doctors and nurses attempted to revive Tamez for approximately
fifty minutes, but he died at 12:29 p.m.            After his death, an autopsy was
performed. The autopsy found that Tamez died of acute cocaine intoxication.
A clear, open baggy was found in Tamez’s intestine, and the baggy tested
positive for cocaine.
       After Tamez’s death, the Tamez Family brought this suit on Tamez’s
behalf under 42 U.S.C. § 1983, alleging that the Appellees were liable for
Tamez’s death. Appellees moved for summary judgment on the Tamez Family’s
§ 1983 claim, and the district court granted their motion. This appeal followed.
                                   II. DISCUSSION
       The Tamez Family contends that material fact issues concerning the
various defendants’ conduct require reversal of the summary judgment. In
addition to defending the summary judgment, the Appellees contest the
timeliness of the notice of appeal.
1. Notice of Appeal
       Appellees argue that the appeal is untimely. The timely filing of an appeal
is “mandatory and jurisdictional.” Bowles v. Russell, 551 U.S. 205, 210 (2007).
The question of timeliness turns on whether Texas Independence Day is a “legal
holiday” for the purposes of Federal Rule of Appellate Procedure 26(a)(4).1 We


       1
          The district court entered judgment on January 30, 2009. Under Federal Rule of
Appellate Procedure 4(a)(1)(A), a party must file a notice of appeal within thirty days of a
district court’s entry of judgment. Under Federal Rule of Appellate Procedure 26(a)(3), the
last day of the thirty-day period cannot be a Sunday or a legal holiday. Thirty days from
January 30, 2009 was March 1, 2009, a Sunday. The next day, March 2, was Texas

                                             6
                                      No. 09-40310

conclude that it is; the notice of appeal was timely filed. T EX. G OV’T C ODE §§
662.021, 662.003(b)(2).
2. Motion for Summary Judgment
       The Tamez Family asserts that Appellees violated Tamez’s Fourteenth
Amendment right not to have his serious medical needs met with deliberate
indifference. Thompson v. Upshur County, 245 F.3d 447, 457 (5th Cir. 2001)
(citing Estelle v. Gamble, 429 U.S. 97, 103 (1976)). The district court granted
summary judgment, finding that, based on the evidence before it, no reasonable
jury could conclude that any of the defendants were deliberately indifferent to
Tamez’s need for medical care. We agree.
A.     Standard of Review
       Summary judgment is proper “if the pleadings, the discovery and
disclosure materials on file, and any affidavits show that there is no genuine
issue as to any material fact and that the movant is entitled to judgment as a
matter of law.” F ED. R. C IV. P. 56(c). A genuine issue of material fact exists
when the evidence is such that a reasonable jury could return a verdict for the
non-movant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When
reviewing a grant of summary judgment, we view all facts and evidence in the
light most favorable to the non-moving party. United Fire & Cas. Co. v. Hixson
Bros., 453 F.3d 283, 285 (5th Cir. 2006). However, to avoid summary judgment,
the non-movant must go beyond the pleadings and come forward with specific
facts indicating a genuine issue for trial. Piazza’s Seafood World, LLC v. Odom,
448 F.3d 744, 752 (5th Cir. 2006). We may “affirm a grant of summary judgment
on any grounds supported by the record and presented to the court below.”
Hernandez v. Velasquez, 522 F.3d 556, 560 (5th Cir. 2008).



Independence Day. The Tamez Family did not file the notice of appeal until March 3.
Therefore, whether their notice of appeal is timely filed turns on whether Texas Independence
Day is a legal holiday.

                                             7
                                   No. 09-40310

B.    Selecting the Applicable Standard
      The appropriate standard to apply in analyzing constitutional challenges
brought by pretrial detainees depends on whether the alleged unconstitutional
conduct is a “condition of confinement” or “episodic act or omission.” Scott v.
Moore, 114 F.3d 51, 53 (5th Cir. 1997) (en banc).      An “action is characterized
properly as an ‘episodic act or omission’ case” when “the complained-of harm is
a particular act or omission of one or more officials.” Id. If a case falls under the
“episodic act or omission” category, we apply the deliberate indifference
standard. Id. at 54 (citing Hare v. City of Corinth, 74 F.3d 633, 649 n.4 (5th Cir.
1996) (en banc)). The Tamez Family’s complaint that the Appellees refused to
provide Tamez with immediate medical treatment qualifies as an “episodic act
or omission,” which triggers the deliberate indifference standard. See id.
C.    Standard for Deliberate Indifference
      In order to establish a constitutional violation, the Tamez Family had to
first show that each defendant acted with subjective deliberate indifference to
Tamez’s need for medical care. Scott, 114 F.3d at 54. For summary judgment
purposes, then, the Tamez Family must raise a material fact issue concerning
each Appellee’s subjective deliberate indifference.       “Deliberate indifference
encompasses only unnecessary and wanton infliction of pain repugnant to the
conscience of mankind.” McCormick v. Stalder, 105 F.3d 1059, 1061 (5th Cir.
1997).   To show subjective deliberate indifference, a plaintiff must present
evidence: (1) that each defendant had subjective knowledge of “facts from which
an inference of substantial risk of serious harm could be drawn,” (2) that each
defendant actually drew that inference; and (3) that each defendant’s response
to the risk indicates that the appellee “subjectively intended that harm occur.”
Thompson, 245 F.3d at 458-59. In other words, the Tamez Family must present
evidence raising a material fact issue to the effect that the Appellees failed to act
when they “were either aware or should have been aware[, because it was so

                                         8
                                       No. 09-40310

obvious,] of an unjustifiably high risk” to Tamez’s health. See Sibley v. Lemaire,
184 F.3d 481, 489-90 (5th Cir. 1999) (finding summary judgment proper on the
basis of qualified immunity when the evidence did not show that the appellees
were aware of an “unjustifiably high risk” to a detainee).2
D.     Applying the Deliberate Indifference Standard
       The Tamez Family claims that each appellee was deliberately indifferent
to Tamez’s need for medical care. The summary judgment evidence, however,
does not support this assertion.
(1) Detectives Rodriguez and Ibarra
       The case against Detectives Rodriguez and Ibarra rises and falls on Nurse
Esquivel’s testimony, because nothing else in the record even potentially creates
a fact issue in this regard. 3 On appeal, the Tamez Family’s brief argues that


       2
          Appellees did not move for summary judgment on the basis of qualified immunity.
However, some issues overlap. See Sibley, 184 F.3d at 490. In making the determination of
qualified immunity, the courts in cases like Sibley examine the same “deliberate indifference”
standard addressed here, so we look to such cases for guidance. See also Thompson, 245 F.3d
at 459 (explaining that examples of what is deliberate indifference “are relevant in assessing
th scope of clearly established law [for qualified immunity purposes],” but a plaintiff
responding to the defense of qualified immunity must also show “that all reasonable officials
similarly situated would have then know that the alleged acts of the defendants violated the
United States Constitution.”)
       3
          Other than the evidence from Nurse Esquivel, the Tamez Family points to the
detectives’ knowledge that Tamez was combative in the car; however, nothing about his
behavior indicated a need for immediate medical attention. The record shows that the
detectives also knew that Tamez was bipolar and that Detective Rodriguez knew that Tamez
might have an STD. Although the detectives knew that Tamez was bipolar, they were not
deliberately indifferent to any risk his condition might have posed, because they were not
aware of the symptoms or characteristics of the illness or any other facts that would indicate
some unjustifiably high risk to his health. See Whitt v. Stephens County, 529 F.3d 278, 284
(5th Cir. 2008) (finding that an officer who knew that a detainee might have a mental health
issue was not deliberately indifferent because the other facts did not indicate a substantial
risk of harm). While Detective Rodriguez knew that Tamez claimed to have an STD, he did
not know what kind of STD or any other fact that would indicate that the STD posed a
substantial risk of harm to Tamez’s health. The record also does not show that the risk posed
by Tamez’s mental illness or STD was so obvious that the detectives should have known about
the risk. The Tamez Family also argues that the detectives knew about Tamez’s criminal
history and that they knew he had a “short straw” on his person after he was arrested; the

                                              9
                                       No. 09-40310

Nurse Esquivel told the detectives to take Tamez to the hospital immediately.
Were this so, the case would be different. But, in fact, Nurse Esquivel says no
such thing. He said only that he expected logically that Tamez’s next stop would
be the hospital. He never testified that he conveyed this expectation to the
detectives or that he in any way indicated any temporal urgency about his
referral to the hospital to the detectives. The detectives’ knowledge that Tamez
had pupils that were maximally dilated and Tamez needed a medical clearance
do not show that the detectives were aware of an unjustifiably high risk to
Tamez’s health, nor do they show that the risk to Tamez’s health was so obvious
that they should have inferred such a risk.4 Because pupil dilation can mean “a
lot of things,”according to the evidence, and because the undisputed evidence is
that medical clearances were requested for even the most minor medical issues,
nothing about these facts suggested a need for immediate attention. Even Nurse
Esquivel’s suggestion to take Tamez to VRMC does not show that Tamez was at
a substantial risk of harm. The nurse did not tell the detectives to take Tamez
there immediately, and he did not tell the detectives that Tamez was in need of
urgent or emergency care. The record also shows that Nurse Esquivel always
suggested VRMC for medical clearances regardless of how serious or minor the
medical issue, which means the suggestion itself would not obviously indicate
the existence of any substantial risk to Tamez’s health.
       Because the facts relied upon by the Tamez Family do not show that the
detectives were aware, or should have been aware, of any substantial risk to



record, however, does not support their assertions.
       4
        Nurse Esquivel testified in his deposition that pupil dilation could indicate “a lot of
things.” This testimony does not show that Tamez’s pupil dilation obviously indicated the
existence of some substantial risk to his health. The Tamez Family also make much of the fact
that Nurse Esquivel considered Tamez’s pupil dilation a “red flag.” There is no evidence,
however, that Nurse Esquivel told the officers that he considered Tamez’s pupil dilation a “red
flag.”

                                              10
                                      No. 09-40310

Tamez’s health, the district court was correct in granting the detectives’ motion
for summary judgment. See Gibbs v. Grimmette, 254 F.3d 545, 550 (5th Cir.
2001) (affirming district court’s grant of summary judgment when the evidence
did not show that the appellees acted with deliberate indifference to a detainee’s
right to medical care).
(2) Jailers Bernal and Elizondo
       The Tamez Family argue that jailers Bernal and Elizondo knew that
Tamez was at a substantial risk of harm because they were told he needed a
medical clearance and that he had dilated pupils.5 These fact, however, do not
show that the jailers knew or should have known of a substantial risk to Tamez’s
health. See Gibbs, 254 F.3d at 550.
E. Liability of the Remaining Appellees
       The record shows that the district court properly found that none of the
detectives or the jailers violated Tamez’s constitutional rights. This finding by
the court also means that summary judgment was properly granted as to both
Chief Castillo and Supervisor Gerald Manthey (“Supervisor Manthey”).                    The
Tamez Family argues on appeal that Chief Castillo and Supervisor Manthey are
liable under the theory of supervisor liability, but supervisor liability requires
an underlying constitutional violation before such liability can be imposed.6 See
Becerra v. Asher, 105 F.3d 1042, 1048 (5th Cir. 1997) (“[W]ithout an underlying



       5
         The district court noted that the record presents a dispute over whether the jailers
were told that Tamez’s pupils were dilated. We assume for the purposes of reviewing the
grant of summary judgment that the jailers were told that Tamez’s pupils were dilated.
       6
         Although the Tamez Family does not argue on appeal that Chief Castillo or Supervisor
Manthey were themselves deliberately indifferent to Tamez’s rights, the Tamez Family’s
complaint did assert that the chief and the supervisor were individually liable for Tamez’s
death. The record, however, does not show that Chief Castillo or Supervisor Manthey engaged
in any conduct that constituted deliberate indifference. Therefore, the district court was
correct in granting summary judgment on Tamez’s claim that Chief Castillo and Supervisor
Manthey were individually liable for violating his rights.

                                             11
                                       No. 09-40310

constitutional violation, there can be no § 1983 liability imposed on the school
district or the individual supervisors.”). Because no reasonable jury could find
that either the detectives or the jailers violated Tamez’s constitutional rights,
there can be no supervisor liability imposed on Chief Castillo or Supervisor
Manthey, so the district court properly granted them summary judgment.7
                                  III. CONCLUSION
           The summary judgment record does not show that a reasonable jury
could find that the Appellees were deliberately indifferent to Tamez’s need for
medical care. For this reason, the district court’s grant of summary judgment
is AFFIRMED.




       7
         The Tamez Family also brought suit against the City of Harlingen, but no argument
on appeal is made that the city is liable for any alleged violation of Tamez’s rights. Even if
such an argument had been made, municipal liability could not be established here, because
the summary judgment evidence does not show that the any of the detectives or the jailers
violated Tamez’s rights. See Becerra, 105 F.3d at 1048.

                                             12
