     Case: 11-60024     Document: 00511815135         Page: 1     Date Filed: 04/09/2012




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

                                                                            FILED
                                                                            April 9, 2012

                                       No. 11-60024                        Lyle W. Cayce
                                                                                Clerk

THOMAS EDWIN HORN,

                                                  Plaintiff-Appellant
v.

THOMAS E. VAUGHAN, also known as Tommy Vaughan, Yazoo County
Sheriff; SHERRY VAUGHAN; YAZOO COUNTY, MISSISSIPPI,

                                                  Defendants-Appellees



                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 5:09-CV-119


Before JONES, Chief Judge, and PRADO and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Thomas Edwin Horn, pro se and in forma pauperis, brought a § 1983 suit
against Sheriff Tommy Vaughan, Sherry Vaughan, Chad Blackstock, Yazoo
County, and Yazoo Medical Clinic for violation of his constitutional rights by
denying him HIV medication for several months. The trial court dismissed two
of the defendants and entered summary judgment in favor of the remaining
three defendants. We AFFIRM.


        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-60024

                               BACKGROUND
      Horn, 51, was a pre-trial detainee at the Yazoo County Detention Center
from August 20, 2007 through August 21, 2008, having been charged with “Rape;
Carnal Knowledge of a Child Under 14.” Horn, who is HIV positive, received his
HIV medication while incarcerated without incident through January 2008. In
January 2008, newly elected Sheriff Thomas Vaughan took office and hired a
new jail administrator, Deputy Sheriff Chad Blackstock. Horn ran out of
medication on February 1st and informed Blackstock. Horn was taken to a
doctor on February 21, 2008 and he was prescribed a 21-day supply of Atripla,
which was exhausted in late March 2008.         Horn did not receive another
prescription for HIV medication until August 2008.
      One reason for the delay was that the jail changed medical contractors
sometime between February and April 2008, and the Yazoo Medical Clinic
became the new medical care contractor for the jail. Blackstock informed Horn
of the change and told him that a “nurse” from the clinic would interview the
patients. The “nurse” turned to be out Sherry Vaughan, the Sheriff’s wife, who
worked as a clerk at the clinic. Ms. Vaughan conducted an initial interview with
Horn in mid-April 2008, but Horn received no medical care for his HIV until
August 2008, despite his numerous communications to Blackstock about his
condition.
      Horn talked to Sheriff Vaughan on only one occasion while he was a
prisoner at the jail. Horn told the Sheriff that he needed his medication and the
Sheriff told him either that the “nurse” would meet with him and/or to put his
name on the sick call list. Sherry Vaughan, who had previously interviewed
Horn, did not see Horn again after the conversation. Horn accepted a plea
bargain and was transferred to the custody of the state after his August doctor
visit but before he received medication. At the state penitentiary he was
informed that he had developed an immunity to Atripla and was prescribed a

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                                 No. 11-60024

second HIV treatment, which, he alleges, caused him to bleed internally. A third
treatment was administered, which Horn is tolerating well; his HIV is again
“undetectable.”
      In response to Horn’s § 1983 action, the trial court ordered the defendants
to produce, among other things, a copy of Horn’s medical records. Horn claims
that the medical records are incomplete because eleven pages dating from
October 2008 through May 2009 are missing. Nevertheless, the court granted
summary judgment to Sherry Vaughan because she was only a clerk who lacked
the medical expertise or authority to make treatment or medication decisions.
The court also granted summary judgment to Sheriff Vaughan and Yazoo
County, finding that Horn’s constitutional rights were not violated because he
suffered no substantial harm.
      Horn has appealed these summary judgments but not the court’s dismissal
of Blackstock and Yazoo Medical Clinic. He asserts that issues of material fact
render summary judgment inappropriate and that the district court erred in
entering summary judgment when discovery was incomplete. He also charges
that the trial court abused its discretion by not appointing him counsel.
                                DISCUSSION
      1. This court reviews the grant of a motion for summary judgment de
novo. Xtreme Lashes, LLC v. Xtended Beauty, Inc., 576 F.3d 221, 226 (5th Cir.
2009). Summary judgment is proper if the record discloses “that there is no
genuine dispute as to any material fact and the movant is entitled to a judgment
as a matter of law.” Fed. R. Civ. P. 56(a). As an initial matter, Horn has waived
any appeal of the grant of summary judgment to Sherry Vaughan. Issues that
are not briefed on appeal are waived. Yohey v. Collins, 985 F.2d 222, 224-25 (5th
Cir. 1993). Even pro se appellants must brief arguments to preserve them. Id.
at 25. The trial court granted summary judgment to Sherry Vaughan in a
separate order and for different reasons than the other defendants. Horn,

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however, neither mentions Sherry Vaughan by name nor challenges in his briefs
any of the specific reasons the trial court granted summary judgement for her.
       We affirm summary judgment for Sheriff Vaughan and Yazoo County,
though for different reasons than those given by the trial court. See LLEH, Inc.
v. Wichita Cnty., Tex., 289 F.3d 358, 364 (5th Cir. 2002) (“[This court] may affirm
for reasons other than those relied upon by the district court.”). As a matter of
law, Sheriff Vaughan was not deliberately indifferent and the county is
consequently not liable for failing to train or supervise the Sheriff.
         Pretrial detainees have constitutional “rights to basic needs such as
medical care and safety” that arise under the Fourteenth Amendment. Hare v.
City of Corinth, 74 F.3d 633, 639 (5th Cir. 1996). “The episodic act or omission
of a state jail official does not violate a pretrial detainee’s due process right to
medical care . . . unless the detainee demonstrates that the official acted or failed
to act with deliberate indifference to the detainee’s needs.” Id. at 637-38.
Moreover, a delay in medical care must cause “substantial harm” to be a
constitutional violation. Easter v. Powell, 467 F.3d 459, 464 (5th Cir. 2006)
(quoting Mendoza v. Lynaugh, 989 F.2d 191, 193 (5th Cir. 1993)). The district
court held that there was an issue of material fact whether Sheriff Vaughan was
deliberately indifferent, but that Horn had not suffered substantial injury.
      We disagree that there was a question of material fact whether Sheriff
Vaughan was deliberately indifferent. “Deliberate indifference is an extremely
high standard to meet.” Domino v. Tex. Dep’t of Criminal Justice, 239 F.3d 752,
756 (5th Cir. 2001). To be “deliberately indifferent,” the sheriff had to be
(1) aware of facts from which an inference of an excessive risk to Horn’s health
or safety could be drawn and (2) the sheriff actually had to draw an inference
that such potential for harm existed. Bradley v. Puckett, 157 F.3d 1022, 1025
(5th Cir. 1998).



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                                  No. 11-60024
      Throughout Horn’s stay at the jail, he spoke with the Sheriff on only one
occasion about his medication. Requests for medical care were handled by the
jail administrator, Blackstock. The evidence does not indicate that Sheriff
Vaughan was aware that Blackstock was ignoring or neglecting Horn’s requests
for medication. Moreover, a representative from Yazoo Medical Clinic did visit
Horn. Sheriff Vaughan was in no position to question the clinic’s medical
treatment of Horn. All the sheriff can do is provide the patient with access to
medical care; there is no claim that the Sheriff cancelled any appointments or
prescriptions. Because the record contains no evidence supporting the Sheriff’s
deliberate indifference, summary judgment was proper on that ground alone,
and we need not address whether Horn suffered substantial harm. Because the
Sheriff did not violate Horn’s constitutional rights, even if failure to train a
sheriff can afford a basis of § 1983 liability, Yazoo County could not be liable for
failing to train or supervise the Sheriff. Finally, Horn provides us no reason to
infer that had his medical records been fully disclosed, their information would
support his claims against the Sheriff or the county.
      2. A trial judge’s decision not to appoint counsel for a pro se litigant will
only be overturned for a clear abuse of discretion. Cupit v. Jones, 835 F.2d 82,
86 (5th Cir. 1987). Trial judges are only required to appoint counsel in § 1983
cases if there are “exceptional circumstances.” Id. The magistrate judge
declined to appoint counsel because Horn’s pleadings were well presented, the
case presented no novel points of law, the claims were straightforward, Horn
proved capable of presenting his claims, and the trial court was able to assist in
discovery and clarifying the pleadings at the Spears hearing.
      This court’s decision in Moore v. Mabus, 976 F.2d 268 (5th Cir. 1992), is
distinguishable. The prisoners’ HIV discrimination claim in Moore required
extensive resources to investigate because systemic prison policies regarding
HIV management are very complex. Id. at 272. Moore does not mean that

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counsel must be appointed in every case where HIV is involved. The trial court
did not abuse its discretion in denying counsel to Horn.
                                                                 AFFIRMED.




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