     Case: 16-11560      Document: 00514322206         Page: 1    Date Filed: 01/25/2018




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

                                    No. 16-11560                                FILED
                                  Summary Calendar                       January 25, 2018
                                                                           Lyle W. Cayce
                                                                                Clerk
GLORIA TREVINO; JULIO TREVINO,

                                                 Plaintiffs-Appellants

v.

ELLIS COUNTY, TEXAS; DR. WAYNE FORTNER; JOHNNY BROWN, in his
official capacity as Sheriff of Ellis County Texas and official in charge of the
Ellis County Jail; HARRY OGDEN, both individually and in his official
capacity as Captain of the Ellis County Jail,

                                                 Defendants-Appellees


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:14-CV-3795


Before BENAVIDES, SOUTHWICK, and COSTA, Circuit Judges.
PER CURIAM: *
       The plaintiffs brought this civil rights action under 42 U.S.C. § 1983,
asserting that the defendants were deliberately indifferent to Juan Trevino’s
medical needs while he was incarcerated in the Ellis County Jail, resulting in
his death.     Specifically, the plaintiffs alleged that the defendants, upon


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 16-11560     Document: 00514322206     Page: 2   Date Filed: 01/25/2018


                                  No. 16-11560

learning that the terminally ill Trevino would likely die soon, elected to
transfer him to another county pursuant to a detainer rather than continue his
medical care in Ellis County. The district court granted summary judgment
for the defendants. We affirm.
      Plaintiffs alleging that prison officials were deliberately indifferent to
the serious medical needs of prisoners must show that that the officials acted
with “deliberate indifference” to a “substantial risk of serious harm” resulting
from a deprivation of medical care. Gobert v. Caldwell, 463 F.3d 339, 345-46
(5th Cir. 2006). This is a stringent standard of fault, found only when the
evidence shows that prison officials recklessly disregarded a known,
substantial risk of serious bodily harm by failing to take reasonable measures
to abate that harm. Connick v. Thompson, 563 U.S. 51, 61 (2011).
      Reviewing this matter de novo, we agree with the district court that the
plaintiffs failed to show a genuine dispute as to any material fact in this case
and, thus, that the defendants were entitled to judgment as a matter of law.
See FED. R. CIV. P. 56(a); McFaul v. Valenzuela, 684 F.3d 564, 571 (5th Cir.
2012). Uncontroverted deposition testimony established that neither Brown
nor Ogden was involved in the decision to transfer Trevino. See Thompkins v.
Belt, 828 F.2d 298, 304 (5th Cir. 1987). The plaintiffs further offered no
evidence of a causal connection between Brown’s and Ogden’s conduct and
Trevino’s transfer or of an unconstitutional policy implemented by Brown that
led to the transfer. See id. Their suggestion that Brown and Ogden had a duty
to step in and halt his transfer effectively argues for vicarious liability, which
is not a basis for relief. See Davidson v. City of Stafford, Texas, 848 F.3d 384,
395 (5th Cir. 2017).
      The plaintiffs likewise presented no evidence of an official Ellis County
policy or regulation, or of an employee practice so common and widespread as



                                        2
    Case: 16-11560      Document: 00514322206   Page: 3   Date Filed: 01/25/2018


                                 No. 16-11560

to be the equivalent of policy, that directly caused the asserted violation of
Trevino’s rights, let alone that Ellis County adopted any such policy with
deliberate indifference. See In re Foust, 310 F.3d 849, 862 (5th Cir. 2002);
Brown v. Bryan Cty., OK, 219 F.3d 450, 457 (5th Cir. 2000). Their contention
that various actions by the defendants and others reflected, or were dictated
by, a formal policy of neglecting the needs of critically ill inmates is wholly
speculative. See Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir. 1994). Moreover,
Ellis County may not be held liable through the actions of Brown because
Brown is not himself liable under § 1983. See City of Los Angeles v. Heller, 475
U.S. 796, 799 (1986).
      Finally, nothing in the record suggests that Fortner was deliberately
indifferent to Trevino’s medical needs, let alone that he intended to cause
Trevino “unnecessary and wanton infliction of pain repugnant to the
conscience of mankind.” Stewart, 174 F.3d at 534. There is no evidence that
Fortner was part of—or even aware of—the decision to transfer Trevino, and
the plaintiffs cite no compelling authority for their assertion that Fortner’s
actions toward Trevino constituted abandonment or were made with reckless
disregard for a known substantial risk of serious bodily harm. See Gobert, 463
F.3d at 346. Rather, the plaintiffs’ critiques of Fortner’s various treatment
decisions over the course of Trevino’s 11-month incarceration reflect their mere
disagreement with his professional decisionmaking. See Stewart v. Murphy,
174 F.3d 530, 537 (5th Cir. 1999).
      The judgment is AFFIRMED.




                                       3
