                                                               United States Court of Appeals
                                                                        Fifth Circuit
                                                                     F I L E D
                   IN THE UNITED STATES COURT OF APPEALS
                           FOR THE FIFTH CIRCUIT                     October 31, 2003

                                                                 Charles R. Fulbruge III
                                                                         Clerk
                                No. 02-51408
                              Summary Calendar



                              ALEJANDRO GARCIA,

                                                        Plaintiff-Appellant,

                                     versus

                    COUNTY OF EL PASO; LEO SAMANIEGO,

                                                    Defendants-Appellees.

                           --------------------
              Appeal from the United States District Court
                    for the Western District of Texas
                        USDC No. EP-00-CV-344-PRM
                           --------------------

Before SMITH, DUHÉ, and WIENER, Circuit Judges.

PER CURIAM:1

      Alejandro Garcia, a Texas resident, appeals from the district

court’s order granting summary judgment to defendants Sheriff Leo

Samaniego and the County of El Paso (“County”).            Garcia filed this

42   U.S.C.    §    1983   civil   rights   complaint    alleging   that     the

defendants’ employees at the El Paso County Detention Facility

(“EPCDF”) were deliberately indifferent to his serious medical

needs while Garcia was confined there as a pretrial detainee for

34 hours in August 1999, after Garcia suffered at least two

     1
        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that this opinion should not be published and is not precedent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.
epileptic seizures during his confinement.      He maintains that the

defendants’ custom or practice of failing to ensure that detainees

were properly and timely administered medications, and their

failure to train subordinates with respect to the handling and

treatment of seizure patients, amounted to objective deliberate

indifference and made them liable as municipal entities.

      This court reviews de novo a district court’s order granting

a   party’s   summary-judgment   motion.     Whittaker     v.   BellSouth

Telecomm., Inc., 206 F.3d 532, 534 (5th Cir. 2000).              Summary

judgment is proper if the pleadings, depositions, answers to

interrogatories,    and   admissions   on   file,    together   with   any

affidavits filed in support of the motion, show that there is no

genuine issue as to any material fact and that the moving party

is entitled to judgment as a matter of law.         FED. R. CIV. P. 56(c).

The moving party bears the burden of showing the district court

that there is an absence of evidence to support the nonmoving

party’s case.   Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).

If the moving party meets the initial burden of showing that there

is no genuine issue, the burden shifts to the nonmovant to set

forth specific facts showing the existence of a genuine issue for

trial.   Rule 56(e).

      As a pretrial detainee, Garcia’s constitutional rights flowed

from the due process guarantees of the Fourteenth Amendment rather

than from the Eighth Amendment’s prohibition against cruel and

unusual punishment.    See Hare v. City of Corinth, 74 F.3d 633, 639

                                  2
(5th Cir. 1996) (en banc).             When such a detainee complains of

unconstitutional medical treatment, there is no significant legal

distinction between pretrial detainees and convicted prisoners.

Gibbs v. Grimmette, 254 F.3d 545, 548 (5th Cir. 2001).                  When a

pretrial detainee’s claim is based on a jail official’s episodic

act or omission, “the proper inquiry is whether the official had

a culpable state of mind in acting or failing to act.”               Hare, 74

F.3d at 643.      To establish liability, a pretrial detainee must

“show that a state official acted with deliberate indifference to

a substantial risk of serious medical harm and that injuries

resulted.”   Wagner v. Bay City, Tex., 227 F.3d 316, 324 (5th Cir.

2000).

      In an episodic-act-or-omission case against a municipality,

“an actor is usually interposed between the detainee and the

municipality,     such    that   the    detainee    complains   first    of   a

particular act of, or omission by, the actor and then points

derivatively to a policy, custom or rule (or lack thereof) of

the municipality that permitted or caused the act or omission.”

Flores v. County of Hardeman, Texas, 124 F.3d 736, 738 (5th Cir.

1997).   To succeed in holding a municipality liable under these

standards, the plaintiff must establish not only that a municipal

employee acted with subjective deliberate indifference but also

that the employee’s act resulted from a policy or custom adopted

or   maintained   by     the   municipality    with   objective     deliberate

indifference      to     the     plaintiff’s       constitutional     rights.

                                        3
See    Olabisiomotosho   v.     City    of   Houston,    185   F.3d    521,   526

(5th Cir. 1999).

       The district court appeared to conclude that the defendants

had fallen short of establishing that no genuine of issue of

material fact remained as to whether the defendants’ employees at

EPCDF had been deliberately indifferent to Garcia by failing to

give him his epilepsy medications.              The absence of first-hand

testimony from EPCDF nurses who had provided medication to Garcia,

as well as errors in the EPCDF’s Medical Administration Record for

Garcia, casts doubt on whether Garcia received the necessary

medications.

       Garcia had argued that a municipal “custom” of failing to

administer medications to EPCDF detainees can be established

through records of EPCDF detainee grievances alleging the failure

to administer medications, evidence of dozens of prior seizure

incidents involving EPCDF detainees, and a state lawsuit filed by

the survivors of an EPCDF detainee who died in 1997 as the result

of an epileptic seizure.            (Garcia has not suggested that the

County    had   an   official    “policy,”     written    or   unwritten,     of

neglecting to administer necessary medications to detainees.)

To establish a “custom,” Garcia was required to show both a

“persistent and widespread practice” and actual or constructive

knowledge of such custom by the municipality or by an official to

whom    the   municipality    had      delegated   policymaking       authority.



                                         4
See Pineda v. City of Houston, 291 F.3d 325, 328 (5th Cir. 2002),

cert. denied, 537 U.S. 1110 (2003).

       The   district        court       did    not     err   in    concluding         that     the

evidence submitted by Garcia was insufficient to create an issue

of    material     fact      as    to     whether       the   defendants          observed      an

unconstitutional custom or were constructively aware of such a

custom.      The      record       of    grievances       cited         by    Garcia     included

grievance responses that indicated that EPCDF personnel usually

replied that the complaining detainees either would receive or

already had received their medications.                       The responses reflected,

if anything, a ready willingness by EPCDF officials to correct

improper dosages and to fill depleted prescriptions.                                As for the

prior lawsuit cited by Garcia, the lawsuit appears to be pending

and the issues therein, while very similar to those in the instant

case,   remain        unresolved.              The    lawsuit      is    thus     of     doubtful

evidentiary value.           Even if the evidence submitted by Garcia was

sufficient to raise a genuine issue of material fact as to whether

a municipal custom existed, he has not demonstrated that the

defendants       were       actually       or         constructively           aware     of     it.

See   Pineda,      291      F.3d    at    330        (constructive           knowledge    may    be

demonstrated by showing that the pattern of prior incidents was so

widespread    that       they      were    “‘the        subject     of       prolonged     public

discussion       or    of    a     high        degree    of     publicity.’”           (citation

omitted)).



                                                 5
     Garcia has also argued that the defendants were liable for

failing to train EPCDF personnel in the “proper handling and

recognition of inmates who suffer from seizure disorders” or in

reducing the risk of such disorders.    To succeed on a failure-to-

train claim, a plaintiff must establish (1) inadequate training

procedures, (2) that inadequate training procedures caused the

injury, and (3) deliberate indifference of municipal policymakers.

Pineda, 291 F.3d at 332.      The evidence submitted by Garcia with

respect to EPCDF personnel’s responses to the two seizures he

allegedly suffered while in EPCDF custody did not establish a

genuine issue of material fact as to whether improper training

contributed to his injuries.    In fact, there is almost no evidence

of what treatment was administered to Garcia in the immediate wake

of the seizures.

     Garcia does not brief the state-law tort claims and Fifth and

Eighth Amendment claims that he had set forth in his complaint.

These claims are abandoned.    See Walker v. Thompson, 214 F.3d 615,

625 (5th Cir. 2000); FED. R. APP. P. 28(a)(9).

     The judgment of the district court is AFFIRMED.




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