     Case: 09-30895        Document: 00511204634          Page: 1    Date Filed: 08/16/2010




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

                                                   FILED
                                                                              August 16, 2010

                                          No. 09-30895                         Lyle W. Cayce
                                                                                    Clerk

JAMES CLINTON ABSHURE,

                                                      Plaintiff–Appellant
v.

STEVE PRATOR; JERMAINE KELLY; SHERIFF’S DEPARTMENT CADDO
PARISH; DONALD WEBB, Deputy,

                                                      Defendants–Appellees




                       Appeal from the United States District Court
                          for the Western District of Louisiana
                                 USDC No. 5:06-CV-2031


Before JONES, Chief Judge, PRADO, Circuit Judge, and OZERDEN * , District
Judge.
PER CURIAM:**
        Appellant James Clinton Abshure appeals the district court’s grant of a
motion to dismiss in favor of Deputy Jermaine Kelly, and the district court’s
grant of summary judgment in favor of Deputy Donald Webb and Sheriff Steve
Prator, in his capacity as Sheriff of the Caddo Parish Sheriff’s Office (collectively,


        *
            District Judge of the Southern District of Mississippi, sitting by designation.
       **
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
   Case: 09-30895       Document: 00511204634         Page: 2     Date Filed: 08/16/2010



                                       No. 09-30895

“Defendants”).      Abshure claims that Defendants violated his Fourteenth
Amendment rights1 by acting with deliberate indifference to his medical needs
when they kept him in custody for approximately twenty-four hours without
giving him insulin, despite knowing that he was a diabetic and was overdue for
his insulin shot.
       Deputy Kelly arrested Abshure at his home on a misdemeanor charge, and
during the arrest, Deputy Kelly prevented Abshure from injecting himself with
insulin. After his arrest, nurses at the jail monitored Abshure’s blood sugar in
the infirmary, and sent him to the hospital the next morning when his blood
sugar level rose. Deputy Webb transported Abshure to the hospital, where, after
waiting for seven hours, Abshure signed a form refusing medical treatment and
checked himself out of the hospital, returning to jail in order to obtain bond.
Nurses continued to monitor Abshure at the jail, and when his blood sugar level
rose again, advised him to return to the hospital again, but Abshure signed a
form refusing medical treatment and continued his efforts to obtain bond. His
blood sugar level continued to rise until, after suffering symptoms of diabetic
ketoacidosis, he was checked into the hospital. Abshure then filed this lawsuit.
       To demonstrate a constitutional violation, Abshure must show that
Defendants acted “with deliberate indifference to a substantial risk of serious
medical harm and resulting injuries.” Mace v. City of Palestine, 333 F.3d 621,


       1
         Although the district court analyzed this claim under the Eighth Amendment,
Abshure’s claim is, in reality, a due process claim because the Eighth Amendment applies to
treatment of prisoners, not pretrial detainees such as Abshure. See Hare v. City of Corinth,
74 F.3d 633, 639 (5th Cir. 1996) (en banc) (stating that pretrial detainee’s rights “flow from
both the procedural and substantive due process guarantees of the Fourteenth Amendment”).
However, because Abshure claims that Defendants’ “episodic acts or omissions” violated his
rights, we apply the same deliberate indifference standard used for Eighth Amendment
prisoner claims. Id. at 650.

                                              2
   Case: 09-30895      Document: 00511204634         Page: 3     Date Filed: 08/16/2010



                                      No. 09-30895

625–26 (5th Cir. 2003). As to his claim against Deputy Kelly, even on the facts
alleged by Abshure, Deputy Kelly merely prevented Abshure from injecting
himself with an unknown substance, and prevented Abshure from transporting
the syringe with him to jail. These decisions were reasonable because Deputy
Kelly had no way to know what was in the syringe. Because qualified immunity
protects Deputy Kelly from liability unless his actions are objectively
unreasonable, see Meadours v. Ermel, 483 F.3d 417, 423 (5th Cir. 2007), we
affirm the grant of Deputy Kelly’s motion to dismiss.2
       Abshure claims that Deputy Webb acted with deliberate indifference to his
medical needs because he did not obtain medical treatment for Abshure while
Abshure was at the hospital, and because he suggested that Abshure check
himself out of the hospital so that he could return to jail to try to obtain bond.
Even viewing the facts in the light most favorable to Abshure, Deputy Webb did
not act with deliberate indifference by suggesting Abshure check himself out of
the hospital so he could return to jail and attempt to obtain bond, because
Deputy Webb did not have “subjective intent to cause harm.” Mace, 333 F.3d at
626. Similarly, Deputy Webb lacked the requisite intent to cause harm when he
did not actively pursue medical attention from the medical staff at the hospital.
       Abshure faces different hurdles in his effort to hold Sheriff Prator liable
under a municipal liability theory. Municipal liability requires Abshure to
demonstrate, inter alia, a constitutional deprivation, that is, deliberate
indifference, by one of Sheriff Prator’s employees. Olabisiomotosho v. City of
Houston, 185 F.3d 521, 528–29 (5th Cir. 1999). Neither Deputy Kelly, nor

       2
         It is also clear that Deputy Kelly did not act with deliberate indifference. Abshure
displayed no symptoms of elevated blood sugar at the time, and Deputy Kelly had no reason
to believe the jail would not be able to address Abshure’s medical condition.

                                             3
   Case: 09-30895    Document: 00511204634      Page: 4    Date Filed: 08/16/2010



                                  No. 09-30895

Deputy Webb, nor the jail nurses acted with deliberate indifference to Abshure’s
serious medical needs. The nurses attempted to treat Abshure by sending him
to the hospital, and although he claims they should have obtained an order from
a physician so they could administer insulin themselves, “[d]isagreement with
medical treatment does not state a claim for . . . indifference to medical needs.”
Norton v. Dimazana, 122 F.3d 286, 293 (5th Cir. 1997) (citations omitted).
      Abshure also claims that Sheriff Prator is liable for the failure to train his
employees to treat diabetic detainees. This claim fails because Sheriff Prator’s
employees met Louisiana’s legal minimum for training, and Abshure has made
no showing that Louisiana’s legal minimum is insufficient. See Benavides v.
County of Wilson, 955 F.2d 968, 973 (5th Cir. 1992) (holding that where the legal
minimum is met, a plaintiff must affirmatively demonstrate that the legal
minimum training is insufficient).
      Abshure’s Louisiana state law negligence claim also fails. Abshure seeks
to hold Sheriff Prator liable based on the acts of Deputy Kelly, Deputy Webb,
and the jail nurses, as well as for Sheriff Prator’s policies. Any negligence claim
based on Deputy Kelly’s actions fails because, as discussed above, he acted
reasonably. See Bonnet v. Lafayette Parish Sheriff, 2 So. 3d 1280, 1284 (La. Ct.
App. 2009) (stating that the police officer must only do what is reasonable under
the circumstances). Abshure cannot show negligence based on Deputy Webb’s
or the nurses’ actions because he suffered injury as a result of his own “willful
acts” of first checking himself out of the hospital, and then refusing to return to
the hospital once he had returned to the jail.        Under Louisiana law, law
enforcement officials are not liable for injuries “attributable to [the prisoner’s]
own willful act.” Barlow v. City of New Orleans, 241 So. 2d 501, 504 (La. 1970).


                                         4
   Case: 09-30895   Document: 00511204634      Page: 5     Date Filed: 08/16/2010



                                 No. 09-30895

Finally, Abshure has not shown Sheriff Prator’s policy toward diabetic detainees
is negligent, because the only evidence he puts forward is evidence that the
policy is not comprehensively written. We hold this evidence is insufficient to
raise a genuine issue of material fact as to negligence.
      Accordingly, we affirm the grant of Deputy Kelly’s motion to dismiss, and
affirm the grant of summary judgment in favor of Deputy Webb and Sheriff
Prator.
      AFFIRMED.




                                       5
