     Case: 17-60175      Document: 00514345145         Page: 1    Date Filed: 02/12/2018




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

                                                                                           FILED
                                                                                    February 12, 2018
                                      No. 17-60175
                                                                                      Lyle W. Cayce
                                                                                           Clerk
JOANN SANDERS HARTZOG, Individually and as Administratrix of the
Estate of Steven Wayne Hartzog, Deceased; STACY HARTZOG DAVIS,
Individually and as Next Friend of Conner John Hartzog, A Minor,

              Plaintiffs - Appellants

v.

J. M. HACKETT; JOHN DOES 1-5; DEVIN MULLINS; JOSH EARLS,

              Defendants – Appellees


                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                              USDC No. 2:16-CV-2


Before DAVIS, HAYNES, and COSTA, Circuit Judges.
PER CURIAM:*
       Steven Hartzog (“Hartzog”) passed away after being detained in
Lawrence County Jail. His estate (as represented by Joann Sanders Hartzog
and Stacy Hartzog Davis, collectively, “Plaintiffs”) appeals the district court’s
grant of summary judgment to J.M. Hackett, Devin Mullins, and Josh Earl
(collectively, “the Deputies”) on Plaintiffs’ Fourteenth Amendment Due




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 17-60175

Process claims and granting of qualified immunity to the Deputies. Upon
careful consideration of all attendant facts and circumstances, we affirm.
      Plaintiffs’ claim is based upon the Fourteenth Amendment Due Process
“right to be secure in [one’s] basic human needs, such as medical care and
safety.” Hare v. City of Corinth, 74 F.3d 633, 647–48 (5th Cir. 1996) (en banc).
To overcome a motion for summary judgment, Plaintiffs must show that “the
summary judgment evidence, viewed in a light favorable to [Plaintiffs],
demonstrates that [the Deputies were] deliberately indifferent to [Hartzog’s]
serious medical needs.” Domino v. Tex. Dep’t of Criminal Justice, 239 F.3d 752,
755 (5th Cir. 2001). The deliberate indifference standard is extremely high. It
requires a plaintiff to show that “1) the official was aware of facts from which
an inference of substantial risk of serious harm could be drawn; 2) the official
actually drew that inference; and 3) the official’s response indicates the official
subjectively intended that harm occur.” Thompson v. Upshur Cty., 245 F.3d
447, 458–59 (5th Cir. 2001) (citing Hare, 74 F.3d at 643, 649–50).
      We do not condone the Deputies’ conduct. The facts presented could
support a conclusion that the Deputies were negligent in their treatment of
Hartzog. Hackett, Mullins, and Earl each had an opportunity to seek medical
attention for Hartzog at some point before or after he arrived at the jail. But
negligence is not the applicable standard. The facts of this case, including that
Hartzog was monitored and given the opportunity to have a doctor see him as
his condition worsened, would not support a jury finding that the Deputies
“subjectively intended that harm [to Hartzog] occur.” See Thompson, 245 F.3d
at 459. Therefore, even taken in the light most favorable to the Plaintiffs, the
Deputies’ action, or inaction, does not rise to the very high standard required
to indicate deliberate indifference. See Whitley v. Hanna, 726 F.3d 631, 645
(5th Cir. 2013) (“[A]lthough the decision to gather additional evidence may


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                                    No. 17-60175

have been imprudent . . . we cannot say [the state officers] were deliberately
indifferent to [the victim’s] peril.”).
      AFFIRMED.




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