                                                                           FILED
                            NOT FOR PUBLICATION                             FEB 20 2013

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



KEVIN MAYS,                                      No. 11-35649

              Plaintiff - Appellant,             D.C. No. 3:08-cv-00552-EJL-
                                                 CWD
  v.

JODY MUNDELL; DUSTIN                             MEMORANDUM *
HIBBARRD; LEWISTON CITY OF,
IDAHO; JOHN DOES 1-V; DALE
BUTTREY; STEVE LUTES; JACK
MCGEE; RICK SMITH; GABE
RICHARDSON; JACLYN MARTIN;
JAMIE ROMER; JODY BROWN;
JACOB GUNTER,

              Defendants - Appellees.



                    Appeal from the United States District Court
                              for the District of Idaho
                     Edward J. Lodge, District Judge, Presiding

                      Argued and Submitted February 7, 2013
                               Seattle, Washington

Before: FISHER, GOULD, and PAEZ, Circuit Judges.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      Plaintiff-Appellant Kevin Mays appeals the district court’s grant of summary

judgment to the defendant deputies in Mays’s § 1983 deliberate indifference claim

against deputies of the Nez Perce County Jail.1 We have jurisdiction under 28

U.S.C. § 1291, and we affirm.

      We review de novo a grant of summary judgment. Toguchi v. Chung, 391

F.3d 1051, 1056 (9th Cir. 2004). “Viewing the evidence in the light most favorable

to the nonmoving party, we must determine whether there are any genuine issues

of material fact and whether the district court correctly applied the relevant

substantive law.” Id. (quoting Leever v. Carson City, 360 F.3d 1014, 1017 (9th Cir.

2004)). Although the Eighth Amendment protects convicted prisoners from cruel

and unusual punishment, the Fourteenth Amendment Due Process Clause protects

pretrial detainees, such as Mays, from mistreatment. Bell v. Wolfish, 441 U.S. 520,

535-37 & n.16 (1979). However, we apply the same Eighth Amendment

“deliberate indifference” standard to our Fourteenth Amendment analysis of the



      1
         In the same complaint, Mays brought a distinct excessive force claim
against several police officers. That claim went to trial and is not at issue in this
appeal. With respect to his deliberate indifference claim, Mays also named Nez
Perce County, Sheriff Dale Buttrey, and Lieutenant Jack McGee as defendants
under theories of municipal and supervisory liability. Mays does not appeal the
district court’s grant of summary judgment with respect to those defendants. The
remaining defendants, Rick Smith, Gabe Richardson, Jaclyn Martin, Jamie Romer,
Jody Brown, and Jacob Gunter, are referred to collectively as the “deputies.”

                                     Page 2 of 4
treatment of pretrial detainees. Clouthier v. Cnty. of Contra Costa, 591 F.3d 1232,

1244 (9th Cir. 2010).

      It is well-established that prisoners have a right to adequate medical care.

Estelle v. Gamble, 429 U.S. 97, 103 (1976). But not every claim of inadequate

medical care states a claim for relief under the Eighth Amendment, or, in the case

of pretrial detainees, the Fourteenth Amendment. Id. at 105. In order to establish a

constitutional violation, a prisoner must establish that an official acted with

“deliberate indifference to [a] serious medical need[].” Id. at 104. Deliberate

indifference is a state of mind “more blameworthy than negligence.” Farmer v.

Brennan, 511 U.S. 825, 835 (1994). An official is only deliberately indifferent if

he is “aware of facts from which the inference could be drawn that a substantial

risk of serious harm exists, . . . draw[s] the inference,” and fails to adequately

respond to that need. Id. at 837, 844.

      Mays has raised a triable issue of fact as to whether he had a serious medical

need. He has failed, however, to raise a triable issue of fact as to whether the

deputies responded to that medical need with deliberate indifference. To rise to the

level of a constitutional violation, an official’s response to a serious medical need

must be more than negligent. Estelle, 429 U.S. at 106. A prisoner must show that

the officials chose a course of conduct “in conscious disregard of an excessive risk


                                      Page 3 of 4
to [the prisoner’s] health.” Toguchi, 391 F.3d at 1058 (quoting Jackson v.

McIntosh, 90 F.3d 330, 332 (9th Cir. 1996)) (alteration in original) (internal

quotation marks omitted). Nothing in the record supports a finding that the

deputies responded to Mays’s condition with deliberate indifference. After Mays

exhibited symptoms of alcohol withdrawal, he was taken to the hospital where he

was observed and treated by a physician. The doctor authorized his return to the

county jail. Upon his return to jail, the deputies closely monitored Mays and, when

necessary, restrained him to prevent him from injuring himself. No reasonable trier

of fact could conclude that these actions by the deputies constituted deliberate

indifference.

      AFFIRMED.




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