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

                                                                 FILED
                                                             September 30, 2008
                               No. 07-20451
                             Summary Calendar               Charles R. Fulbruge III
                                                                    Clerk

GEORGE V FULLER

                                           Plaintiff-Appellant

v.

HARRIS COUNTY

                                           Defendant-Appellee


                 Appeals from the United States District Court
                      for the Southern District of Texas
                            USDC No. 4:04-CV-633


Before HIGGINBOTHAM, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
      George V. Fuller injured his right knee while incarcerated at the Harris
County Jail. He underwent surgery to repair his knee and developed a post-
surgical infection—fulminant necrotizing fasciitis—that his surgeon described
as “very rare.” He was treated with antibiotics at the jail infirmary. This
treatment was unsuccessful, and Fuller was taken to the hospital where he
underwent irrigation and debridement procedures. Unfortunately, the infection
had progressed to the point that Fuller’s life was threatened, and his right leg

      *
      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should not be published and is not precedent except under the limited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.
                                  No. 07-20451

was amputated below the knee. Fuller sued Harris County under 42 U.S.C. §
1983, alleging that his medical care violated the Eighth Amendment. The
district court granted summary judgment in favor of Harris County. Fuller
appeals the district court’s decision.
      This court reviews de novo the district court’s grant of summary judgment.
Cousin v. Small, 325 F.3d 627, 637 (5th Cir. 2003). Summary judgment is
appropriate if the pleadings, discovery materials, and affidavits show that there
is no genuine issue as to any material fact and that the moving party is entitled
to a judgment as a matter of law. Little v. Liquid Air Corp., 37 F.3d 1069, 1075
(5th Cir. 1994).
      In the context of medical care, prison officials violate the Eighth
Amendment prohibition against cruel and unusual punishment when they
demonstrate deliberate indifference to a prisoner’s serious medical needs.
Wilson v. Seiter, 501 U.S. 294, 297 (1991). The deliberate indifference standard
is high; the plaintiff must establish that the defendants “refused to treat him,
ignored his complaints, intentionally treated him incorrectly, or engaged in any
similar conduct that would clearly evince a wanton disregard for any serious
medical needs.” Domino v. Texas Dep’t of Criminal Justice, 239 F.3d 752, 756
(5th Cir. 2001) (internal quotation marks and citation omitted). A delay in
treatment does not constitute an Eighth Amendment violation without both
deliberate indifference and a resulting substantial harm. Mendoza v. Lynaugh,
989 F.2d 191, 195 (5th Cir. 1993).
      The record shows that there is no genuine issue of material fact as to
whether jail personnel demonstrated deliberate indifference to Fuller’s medical
needs. Fuller first contends that his surgery, which took place on August 19,
2003, was scheduled for July 31, 2003.       Even accepting Fuller’s assertion
regarding the surgery date as true, the record contains no evidence that the
delay was the result of deliberate indifference or that the delay caused Fuller
substantial harm.

                                         2
                                  No. 07-20451

      With respect to the delay in treating his post-surgical infection, Fuller has
similarly failed to demonstrate deliberate indifference. Fuller contends that he
was supposed to have a surgical follow-up examination at the hospital by
September 3 but was not taken there until September 8, and that this delay led
to the spread of his infection and the amputation of his leg. However, the record
contains no evidence that any jail personnel refused to treat Fuller, ignored his
complaints, deliberately provided improper treatment, or otherwise exhibited a
wanton disregard for his medical needs. To the contrary, medical records show
that Fuller was seen numerous times in the jail’s infirmary following his
surgery, and that his post-surgical infection was both noted and treated with
antibiotics.
      Although the amputation of Fuller’s leg is tragic, the record establishes
that there is no genuine issue of material fact as to whether jail personnel
demonstrated deliberate indifference to his medical needs. Accordingly, the
district court’s judgment is AFFIRMED, and Fuller’s motion for appointment of
counsel is DENIED as moot.




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