UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

SUSAN JINKS, individually and as
personal representative of the Estate
of Carl H. Jinks,
Plaintiff-Appellant,

v.

JAMES MCCAULEY; RICHLAND
COUNTY, SOUTH CAROLINA; CHARLES
                                                               No. 98-1003
ESKRIDGE, Doctor,
Defendants-Appellees,

and

RICHLAND COUNTY DETENTION
CENTER; GURNEY BELL; JANE ROE;
JOHN DOE,
Defendants.

Appeal from the United States District Court
for the District of South Carolina, at Columbia.
Matthew J. Perry, Jr., Senior District Judge.
(CA-96-1650-3)

Submitted: August 11, 1998

Decided: September 1, 1998

Before NIEMEYER, HAMILTON, and LUTTIG, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

James M. Griffin, SIMMONS, GRIFFIN & LYDON, L.L.P., Colum-
bia, South Carolina; Bradford P. Simpson, SIMPSON, DONG &
WINGATE, L.L.P., Columbia, South Carolina, for Appellant. Wil-
liam H. Davidson, II, Andrew F. Lindemann, DAVIDSON, MORRI-
SON & LINDEMANN, P.A., Columbia, South Carolina; James E.
Parham, Jr., Columbia, South Carolina, for Appellees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

Appellant Susan Jinks ("Susan") appeals the district court's grant
of summary judgment to Appellees in her 42 U.S.C.§ 1983 (1994)
action. Finding no error in the district court's decision to grant sum-
mary judgment to Appellees, we affirm.

Susan's suit against Appellees--Richland County, South Carolina
("Richland County"), James McCauley ("McCauley"), and Dr.
Charles Eskridge ("Eskridge")--arose out of the death of her husband
Carl H. Jinks ("Carl"), which occurred while he was a prisoner in the
Richland County Detention Center (the "jail"). Suing as personal rep-
resentative of Carl's estate, Susan alleged that Appellees violated
Carl's Eighth Amendment right to be free from cruel and unusual
punishment and that those violations resulted in Carl's death. These
allegations were based on the following facts.

On October 14, 1994, a South Carolina judge found Carl in con-
tempt of court for nonpayment of $1500 in child support and sen-
tenced Carl to confinement in jail pending payment. Carl, who had
been "booked" into the jail that morning, informed the court that he
was an alcoholic, that he was experiencing withdrawal from alcohol,

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and that he wished to be placed in a treatment center rather than jail.
The court informed Carl that it could not order him to be confined to
a treatment center and that he would have to ask to see a physician
at the jail before anything could be done for him.

Nothing in the record indicates that Carl asked to see a physician
once he returned to the jail. However, approximately three days later,
on October 17, a guard at the jail observed Carl clutching the bars of
his cell while shaking, sweating profusely, smiling, and laughing.
Although Carl did not request medical care, the guard reported the sit-
uation to his supervisor, who escorted Carl to Eskridge, a private phy-
sician under contract to provide medical services to the jail.

Eskridge examined Carl and determined that he was suffering from
Stage II alcohol withdrawal. Eskridge prescribed the drug Librium,
which is used to treat the symptoms of alcohol withdrawal, ordered
Carl to be kept under observation, and scheduled a"follow-up" visit
for the next day. According to his testimony in the district court,
Eskridge did not feel that Carl's situation was urgent,1 and therefore
he did not direct jail officials to begin administering the drug to Carl
immediately. Instead, Eskridge acted with the knowledge that the
Librium would be ordered from a private pharmacy and delivered to
the jail the next morning, at which time Carl could begin taking it.2

The record discloses that officials at the jail followed Eskridge's
orders. Guards periodically checked on Carl, and at approximately
6:30 a.m. on October 18, they noticed that Carl had gotten down from
his bunk and was sleeping on the floor. They continued to check on
Carl, and at approximately 9:30 a.m., they observed Carl sitting
upright in the cell.3 According to one of the guards, Carl was no lon-
ger sweating, shaking, laughing, or smiling.4 However, while guards
were placing two other inmates in the cell with Carl at 10:30 a.m., the
guards discovered that Carl was dead.
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1 J.A. at 405.

2 Id.
3 Id. at 103.

4 Id. at 104.

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Susan commenced this action in June 1996. In her complaint, she
asserted several different allegations regarding Appellees. First, she
alleged that Richland County violated Carl's Eighth Amendment
rights by maintaining a policy or custom of inadequate medical care
for inmates in the jail. Second, she alleged that Richland County's
policy or custom of ordering prescriptions for inmates to be delivered
the next day violated Carl's Eighth Amendment rights. Third, she
alleged that Richland County violated Carl's Eighth Amendment
rights by failing to implement a detoxification policy in the jail, by
failing to require guards to document their carrying out of a physi-
cian's orders, and by allowing overcrowding at the jail. Fourth, Susan
alleged that James McCauley, Director of the jail, violated Carl's
Eighth Amendment rights by permitting these conditions to exist in
the jail. Finally, Susan alleged that Eskridge violated Carl's Eighth
Amendment rights by providing negligent care and treatment that
resulted in Carl's death.

After discovery, Appellees moved for summary judgment. Finding
that Susan presented no triable issues of fact on any of her claims, the
district court granted that motion in November 1997. This appeal fol-
lowed.

We review the district court's grant of summary judgment de novo5
and affirm its decision in its entirety. First, the district court deter-
mined that Susan's claim that Richland County violated Carl's Eighth
Amendment rights by maintaining a policy or custom of inadequate
medical care for inmates in the jail did not meet the requirements we
established for such a claim in Spell v. McDaniel.6 In Spell, we stated
that a viable claim of municipal liability under 42 U.S.C. § 1983 can
only arise "`when execution of a government's policy or custom'"
results in the injury alleged.7 In addition, we held that the execution
of a policy or custom that is not unconstitutional on its face must be
more than merely negligent. Rather, it must be at least deliberately
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5 See M&M Med. Supplies v. Pleasant Valley Hosp., 981 F.2d 160, 163
(4th Cir. 1992).
6 824 F.2d 1380 (4th Cir. 1987).
7 Spell v. McDaniel, 824 F.2d 1380, 1385 (4th Cir. 1987) (quoting
Monell v. Department of Soc. Servs. of New York, 436 U.S. 658, 694
(1978)).

                    4
indifferent to or undertaken with reckless disregard for the constitu-
tional rights of the person who was allegedly injured.8

Here, we agree with the district court's conclusion that, "[e]ven
viewed in the light most favorable to [Susan], the evidence in the
record does not demonstrate that the conduct of Richland County rose
to the level of deliberate indifference or reckless disregard, nor does
it demonstrate the `persistent and widespread' practice [of the policy
or custom] required to invoke . . . municipal liability."9 In attempting
to prove that the "policy or custom" that allegedly resulted in Carl's
death was "widespread," Susan introduced only the testimony of
Linda Byrd ("Byrd"), who had worked as a nurse in the jail. However,
Byrd's testimony never touched on the gravamen of Susan's first alle-
gation against Richland County--that it did not provide medical care
for inmates by following physicians' orders. Rather, Byrd's testimony
was only that inmates were not being seen at times by physicians,10
which is undisputably not the case here.

In addition, as Byrd's testimony focused only on the practices of
medical personnel other than Eskridge, we agree with the district
court's conclusion that it was insufficient to show any causal connec-
tion between the allegedly widespread policy or custom and Carl's
death. Further, as the district court also found, even if Byrd's testi-
mony pertained to the substance of Susan's first allegation and
offered evidence of a causal connection between that allegation and
Carl's death, there is nothing in Byrd's testimony that indicates that
the problems she described were "`so permanent and well-settled as
to [have] the force of law,'"11 and thus, represented actionable policies
or customs.

Therefore, we agree with the district court's conclusion that Susan
failed to offer any evidence that might support a finding of liability
on the part of Richland County in this regard. Accordingly, we affirm
the district court's grant of summary judgment on this allegation.
_________________________________________________________________
8 See id. at 1390-91.
9 J.A. at 780 (quoting Spell , 824 F.2d at 1386).
10 Id. at 516.
11 Spell, 824 F.2d at 1386 (quoting Monell, 436 U.S. at 691)(internal
citation omitted)).

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We also affirm the district court's grant of summary judgment to
Richland County on Susan's claim that the County's policy of order-
ing medication for the jail to be delivered the next day was deliber-
ately indifferent to or undertaken with reckless disregard for the
constitutional rights of prisoners. As the district court noted, it is
undisputed that it was Eskridge who decided that Carl did not need
to begin taking Librium immediately. Had Eskridge decided other-
wise, the jail presumably could have obtained the prescription
quicker. However, as jail officials are generally entitled to rely on a
physician's decision regarding care for a prisoner, 12 there was no pol-
icy or custom that caused Carl's death. Rather, if Carl's death can be
attributed to the fact that he did not begin taking Librium on October
17, then the only person who could be held liable in this regard is
Eskridge, who, in his professional judgment, determined that Carl
could wait until the next day to begin receiving the drug. As we dis-
cuss below, such potential malpractice is not actionable under § 1983.

With regard to Susan's allegation that Richland County should be
held liable for the failure of McCauley, the jail's director, to imple-
ment certain detoxification and medical treatment policies and to ease
the problem of overcrowding at the jail, we agree with the district
court's conclusion that Susan has offered no evidence that "any of
these proposed policies would have prevented Carl Jinks['s] death, [or
that they were] constitutionally required." 13 As the district court con-
cluded, this allegation is largely speculative and makes virtually no
appeal to any standards that might form the basis for an action under
§ 1983. In fact, as the district court noted, the only standards to which
Susan appeals are South Carolina state standards, 14 which, as stan-
dards grounded in state law, cannot form the basis for an allegation
that federal constitutional rights were violated under color of state law.15
Therefore, we affirm the district court's grant of summary judgment
on this allegation.

We also affirm the district court's finding that Susan presented no
_________________________________________________________________

12 See Miltier v. Beorn, 896 F.2d 848, 854 (4th Cir. 1990).
13 J.A. at 783 (citations omitted).
14 Appellant's Br. at 24.
15 See, e.g., Baker v. McCollan, 443 U.S. 137, 146 (1979).

                    6
triable issue of fact regarding supervisory liability on McCauley's
part. To be subject to supervisory liability under§ 1983, it must be
shown that: (1) McCauley had actual or constructive knowledge of
the allegedly unconstitutional actions; (2) McCauley tacitly approved
of or was deliberately indifferent to those actions; and (3) that there
was an affirmative causal link between McCauley's failure to correct
the situation and the injury alleged.16

However, as we have found that Susan failed to present any evi-
dence regarding the existence of unconstitutional actions in the jail,
we need not address the question of whether McCauley can be subject
to supervisory liability for those alleged actions. Accordingly, we
affirm the district court's grant of summary judgment to McCauley on
this allegation.

Finally, we decline to disturb the district court's grant of summary
judgment to Eskridge on Susan's allegation that Eskridge violated
Carl's Eighth Amendment rights by providing negligent care and
treatment that resulted in Carl's death. This issue was not specifically
discussed in the district court's memorandum. However, alleged med-
ical malpractice does not rise to the level of a constitutional violation
simply because the victim is a prisoner.17 With this principle in mind,
we find no triable issues in Susan's allegations in this regard. Accord-
ingly, we agree with the district court's conclusion that summary
judgment was warranted on this allegation.

For these reasons, we affirm the district court's order granting sum-
mary judgment in its entirety. We dispense with oral argument
because the facts and legal contentions are adequately presented in the
materials before the court, and argument would not aid the decisional
process.

AFFIRMED
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16 See Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir. 1994) (citations omit-
ted).

17 See Estelle v. Gamble, 429 U.S. 97, 106 (1976).

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