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

                                                                            FILED
                                                                        September 10, 2008

                                       No. 07-40987                   Charles R. Fulbruge III
                                                                              Clerk

DENNIS KEITH HINES,

                                                  Plaintiff-Appellant,
v.

SHERIFF KENT HENSON, In his official capacity
as Sheriff of Angelina County Texas,

                                                  Defendant-Appellee,



                   Appeal from the United States District Court
                         for the Eastern District of Texas
                              USDC. No. 9:06-CV-269


Before REAVLEY, STEWART, and OWEN, Circuit Judges.
PER CURIAM:*
       Plaintiff-Appellant Dennis Keith Hines appeals the district court’s grant
of summary judgment in favor of Defendant-Appellee Sherif Kent Henson. For
the following reasons, we AFFIRM.
       On December 20, 2004, at approximately 10:00 p.m., Texas Department
of Public Safety Trooper, Douglas Minshew, stopped to assist Hines because his
vehicle appeared to have broken down.               After asking Hines a number of


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-40987

questions and receiving no response, Minshew called for back-up, observing that
Hines appeared to be nervous and disoriented. Deputy Chad Wilson responded
to the call for back-up. Eventually, Hines was arrested for public intoxication;
Wilson transported him to the Angelina County Jail. During the ride, Wilson
asked Hines whether he was hurt or having any problems. Hines responded no
to both questions.
      Upon arrival at the county jail, Wilson observed that Hines was able to
follow directions and did not appear to be in any physical pain or distress. Jail
employees observed that Hines exhibited signs of intoxication including
confusion, slurred speech, and loss of coordination. Hines was placed in a “detox
cell” located across from the booking desk. He was released the next morning,
December 21, 2004, at approximately 9:00 a.m. Following his release, Hines
went to a hospital where he was informed that he had suffered a stroke just
prior to his arrest.
      Thereafter, Hines brought an action against Sheriff Henson, in his official
capacity, pursuant to 42 U.S.C. § 1983, alleging that his due process right to
medical care had been violated as a result of the written policy of Angelina
County. The district court granted summary judgment to Sheriff Henson,
holding that: (1) the lack of medical treatment did not amount to deliberate
indifference; and (2) even assuming that Hines could demonstrate deliberate
indifference on the part of a county employee, he had failed to establish that
there was a policy or custom of deliberate indifference to inmates’ medical needs.
Hines timely appeals. Before this court, Hines contends that the district court
improperly granted summary judgment to Sheriff Henson based on its finding
that individual employees were not deliberately indifferent to his right to receive
medical care. According to Hines, he was only required to show deliberate
indifference on the part of Sheriff Henson in establishing the written policy of
Angelina County.


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      We review a district court’s grant of summary judgment de novo. Pegram
v. Honeywell, Inc., 361 F.3d 272, 278 (5th Cir. 2004). Summary judgment is
appropriate “if the pleadings, the discovery and disclosure materials on file, and
any affidavits show that there is no genuine issue as to any material fact and
that the moving party is entitled to judgment as a matter of law.” FED. R. CIV.
P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). If the moving
party meets the initial burden of showing there is no genuine issue of material
fact, the burden shifts to the nonmoving party to produce evidence or designate
specific facts showing the existence of a genuine issue for trial. Pegram, 361
F.3d at 278. “[S]ummary judgment is warranted if the nonmovant fails to ‘make
a showing sufficient to establish the existence of an element essential to [its]
case.’” Nebraska v. Wyoming, 507 U.S. 584, 590 (1993) (quoting Celotex, 477 U.S.
at 322.). To determine whether a material fact dispute exists, this court must
view the evidence “through the prism of the controlling legal standard.” Id.
      To prevail on a municipal liability claim under § 1983, a claimant must
establish: a policy maker, an official policy, and a violation of a constitutional
right whose moving force is the policy or custom. Piotrowski v. City of Houston,
237 F.3d 567, 578 (5th Cir. 2001). A fundamental requirement for any § 1983
claim is the existence of a constitutional violation. Daniels v. Williams, 474 U.S.
327, 330 (1986). “[P]retrial detainees have a constitutional right, under the Due
Process Clause of the Fourteenth Amendment, not to have their serious medical
needs met with deliberate indifference on the part of the confining officials.”
Thompson v. Upshur County, 245 F.3d 447, 457 (5th Cir. 2001). To show that
the right to medical care has been violated, a plaintiff must establish that “the
official had subjective knowledge of a substantial risk of serious harm to a
pretrial detainee but responded with deliberate indifference.” Hare v. City of
Corinth, 74 F.3d 633, 650 (5th Cir. 1996). Negligence is insufficient to meet the
standard for deliberate indifference. Id. Because we find that Hines has not

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succeeded in establishing deliberate indifference by the county jail officials, we
conclude that there was no constitutional violation under the facts of this case.
      Hines does not dispute that on the evening of his arrest he exhibited
symptoms consistent with Trooper Minshew’s and the county jailors’ conclusions
that he was intoxicated, including slurred speech, glassy eyes, and the inability
to provide complete answers to questions. Hines notes, however, that the
booking jailor indicated on the Medical Disability and Suicide Form that he was
considered a medical risk and that the arresting officer believed him to be a
medical risk. However, even in light of this evidence, we cannot conclude that
the officials’ actions rose to the level of deliberate indifference. See Domino v.
Texas Dept. of Criminal Justice, 239 F.3d 752, 756 (5th Cir. 2001)(holding that
deliberate indifference is shown where a plaintiff can establish that the officials
“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” (quoting Johnson v. Treen, 759
F.2d 1236, 1238 (5th Cir. 1985)). Here, there is no showing that officials knew
that Hines was in need of serious medical care and nevertheless denied him
medical treatment or ignored his complaints. Indeed, Hines has offered no
evidence to show that he complained of his condition or requested medical
assistance, nor has he offered evidence showing that his medical condition was
apparent and clearly necessitated medical care. As such, he has failed to
establish a violation of his constitutional right to medical care as he cannot show
that jail officials were deliberately indifferent to his medical condition.
      Because Hines has failed to show a genuine issue of material fact
regarding whether his constitutional rights were violated, we find that the
district court properly granted summary judgment. See DeShaney v. Winnebago
County Dept. of Social Servs., 489 U.S. 189, 202 n.10 (1989)(concluding that



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because there was no constitutional violation, there was no need to consider
whether the allegations in complaint were sufficient to support a § 1983 claim;
Daniels, 474 U.S. at 330 (noting that a plaintiff must establish a violation of a
constitutional right in any § 1983 suit).
       However, even assuming that Hines had established a constitutional
violation, he has failed to show that the municipal policy was the moving force
behind the violation. For the purposes of § 1983, municipal policy may consist
of: (1) “[a] policy statement, ordinance, regulation, or decision that is officially
adopted and promulgated by the municipality’s lawmaking officers or by an
official to whom the lawmakers have delegated policy-making authority;” or (2)
“[a] persistent, widespread practice of city officials or employees, which, although
not authorized by officially adopted and promulgated policy, is so common and
well settled as to constitute a custom that fairly represents municipal policy.”
Johnson v. Deep E. Texas Reg’l Narcotics Trafficking Task Force, 379 F.3d 293,
309 (5th Cir. 2004). Under the circumstances of this case, to prevail on his §
1983 claim, Hines must show that the municipal policy at issue was “adopted or
maintained with deliberate indifference to its known or obvious consequences.”1
Id. “A showing of simple or heightened negligence will not suffice.” Id. (internal
citation and quotations omitted).
       The policy of Angelina County provides in part that: “If an individual
cannot respond accurately to the requested information due to the individual’s
level of intoxication, the individual will be placed in detox until the individual’s
level of intoxication has decreased to the point the individual can provide
reliable information to complete the classification process.” Hines urges that
this policy was adopted by Sheriff Henson with deliberate indifference to its

       1
         Alternatively, a plaintiff may establish liability based on a municipal policy by
showing that the policy is unconstitutional on its face. United States v. Salerno, 481 U.S. 739,
745 (1987). Hines, however, does not argue that the municipal policy at issue is facially
invalid.

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known or obvious consequences, namely, that intoxicated people would be
required to “get better on their own,” thus denying them medical care.
      Hines has failed to show that this policy was adopted with deliberate
indifference. He relies solely on expert testimony that the policy was dangerous
as support for his position. This policy, however, does not purport to address a
situation in which an inmate requires medical care, nor does it authorize the
denial of medical care to intoxicated individuals. Rather, Angelina County has
a policy dealing specifically with the medical needs of inmates, which classifies
medical needs as urgent or emergency, and requires jailors to provide medical
care to an inmate if there is any question as to the seriousness of the inmate’s
need for medical care. The jail also employs EMT-trained jailors. Further, the
detox cells, such as the one in which Hines was placed, are located directly
across from the booking desk so that jailor’s can observe and monitor inmates
placed in those cells. In light of these undisputed facts, Hines has not succeeded
in establishing a genuine issue of material fact regarding whether Sheriff
Henson adopted this policy with deliberate indifference to known or obvious
consequences. Accordingly, we affirm the district court’s grant of summary
judgment.
AFFIRMED.




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