     Case: 09-20768 Document: 00511280971 Page: 1 Date Filed: 11/01/2010




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

                                                 FILED
                                                                          November 1, 2010
                                     No. 09-20768
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

STEPHEN GILBERT,

                                                   Plaintiff-Appellant

v.

LORI ANDERSON BERNDT, Detective of Police; STEVEN FRY, Detective of
Police; CITY OF BRYAN TEXAS; ST JOSEPH HOSPITAL, DR. JOHN A.
MASON, St. Joseph Hospital, DR. CHARLES B. WILLIAMS, St. Joseph
Hospital,

                                                   Defendants-Appellees


                    Appeal from the United States District Court
                         for the Southern District of Texas
                              USDC No. 4:06-CV-3986


Before DAVIS, SMITH, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Stephen Gilbert, Texas prisoner # 1378106, appeals the district court’s
grant of summary judgment dismissing his 42 U.S.C. § 1983 complaint against
Detective Lori Anderson Berndt, Detective Stephen Fry, the City of Bryan,
Texas, Doctor John Mason, Doctor Charles Williams, and the St. Joseph
Regional Health Center. He argues that, in dismissing his claim that he was

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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                                  No. 09-20768

denied prompt and proper medical care, the district court erroneously applied
Eighth Amendment jurisprudence rather than the standard for claims arising
under the Fourteenth Amendment. He contends that the district court wrongly
found that Berndt and Fry did not unconstitutionally disregard his need for
medication to ameliorate pain related to his gunshot wounds; he argues that
Berndt and Fry were aware of his pain, but did not insure that the hospital staff
at St. Joseph Regional Health Center promptly administered him pain
medication because the detectives wanted to finish questioning him about his
role in an armed robbery. He also argues that the district court wrongly granted
the defendants summary judgment without first ensuring that his appointed
counsel filed a brief that adequately defended his position. This court reviews
a grant of summary judgment de novo. Cousin v. Small, 325 F.3d 627, 637 (5th
Cir. 2003).
      Gilbert does not provide adequate argument regarding the district court’s
finding that the City of Bryan, Texas, Doctor John Mason, Doctor Charles
Williams, and the St. Joseph Regional Health Center were entitled to summary
judgment. He therefore has abandoned his claims against these defendants. See
Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir.
1987).
      Gilbert has not established that the district court used the wrong standard
of review to evaluate his denial-of-medical-care claims. Gilbert, who was a
pretrial detainee at the time of the relevant events, asserted claims that focused
on the misconduct of specific individuals rather than a condition of confinement.
See Shepherd v. Dallas County, 591 F.3d 445, 452 (5th Cir. 2009). Accordingly,
his claims are properly characterized as involving episodic acts or omissions, and
the deliberate indifference standard set forth in Farmer v. Brennan, 511 U.S.
825, 834 (1994), is the measure of culpability. See Hare v. City of Corinth, Miss.,
74 F.3d 633, 643 (5th Cir. 1996) (en banc). The record shows that the district
court evaluated Gilbert’s denial-of-medical-care claims under the Farmer

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standard, and he therefore has not shown that the district court used an
incorrect standard of review.
      The record also shows that the district court correctly found that Gilbert
did not establish a constitutional violation with respect to the conduct of Berndt
and Fry. Gilbert specifically failed to demonstrate that Berndt and Fry were
deliberately indifferent to his serious medical needs. See Farmer, 511 U.S. at
835-37. Although Gilbert contends that Fry and Berndt prevented the staff at
St. Joseph Regional Health Center from administering pain medication until the
detectives finished questioning him, the record supports that the decision
whether – and when – to administer pain medication was wholly unrelated to
the detectives or their law enforcement concerns; the decision was made by the
hospital staff and was premised upon legitimate medical reasons. Moreover,
because the record shows that the detectives were present when hospital staff
not only showed awareness of Gilbert’s pain but also informed him of their plan
for administering pain medication, there is no indication that the detectives
exhibited deliberate indifference by not alerting hospital staff about Gilbert’s
complaints of pain. The detectives deferred to hospital staff’s opinion about
when pain medication should be administered and proceeded with their objective
of collecting information about the armed robbery in which Gilbert was
implicated, i.e., their questioning of Gilbert was not done maliciously for the
purpose of delaying the administration of pain medication. The record also does
not support that the detectives understood Gilbert’s pain to present a substantial
risk of serious medical harm. See id. at 837. Thus, because Gilbert did not show
that Berndt and Fry’s conduct amounted to a constitutional violation, the district
court did not err in granting them summary judgment based upon qualified
immunity. See Lytle v. Bexar County, Tex., 560 F.3d 404, 409 (5th Cir. 2009),
cert. denied, 130 S. Ct. 1896 (2010).
      Gilbert’s argument that his appointed counsel failed to file a proper
response to the defendants’ summary judgment motions does not suggest that

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                                  No. 09-20768

the district court’s judgment was erroneous. The constitutional right to effective
assistance of counsel does not apply in a civil case, see Sanchez v. U.S. Postal
Serv., 785 F.2d 1236, 1237 (5th Cir. 1986), and any deficient conduct by counsel,
therefore, would not constitute a basis for invalidating the district court’s
judgment.
      For the foregoing reasons, the judgment of the district court is
AFFIRMED.




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