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

                                                 FILED
                                                                         December 16, 2009

                                     No. 09-10550                      Charles R. Fulbruge III
                                   Summary Calendar                            Clerk



DAVID LACY,

                                                   Plaintiff - Appellant
v.

DR NFN SHAW

                                                   Defendant - Appellee




                   Appeal from the United States District Court
                        for the Northern District of Texas
                                USDC 3:08-CV-450


Before DAVIS, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*
       Appellant David Lacy (“Lacy”) filed this suit arising under 42 U.S.C. §
1983, alleging that he was denied medical care for schizophrenia during the
eight months that he was incarcerated in the Navarro County Jail in Texas.
Lacy sued the Navarro County Sheriff’s Office Medical Department and several
named parties; the only remaining defendant in this appeal is Grady C. Shaw




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-10550

(“Dr. Shaw”), Medical Director for the Navarro County Jail. The district court
granted summary judgment in favor of Dr. Shaw. We now AFFIRM.
                                   I. BACKGROUND
       Lacy has a history of mental health problems and treatment, beginning in
adolescence, when he was prescribed Ritalin for attention-deficit disorder, and
continuing to the present day. Lacy alleges that in 1999 and 2000 he was
diagnosed with schizophrenia at the Jester Hospital in Richmond, Texas and
treated with Haldol, Thorazine and Seroquel. During the eight months he was
incarcerated as a pre-trial detainee at the Navarro County Jail, Lacy submitted
twelve requests to be seen at “sick call,” which is the day each week that Dr.
Shaw sees prisoners. Lacy was seen nine or ten times during sick call: six times
during the next sick call after his request, and three or four times within two
weeks of his request.1 The remaining two requests came within a day or two of
an evaluation by Dr. Shaw and dealt with the same problem that had just been
evaluated; they were therefore not granted. Lacy alleges that his sick call
requests documented his anxiety, depression, insomnia, and schizophrenic
symptoms, including hearing voices. At one point some confusion over a
medication prescribed by Dr. Shaw that was not ordered left Lacy with anxiety
and insomnia that went untreated for four to five weeks. According to Lacy his
schizophrenia was never treated insofar as he was not prescribed particular
anti-psychotic medications that he claims were necessary to treat his symptoms
and that had provided relief for his symptoms in the past.
                            II. STANDARD OF REVIEW
       This court reviews a district court’s grant of summary judgment de novo,
applying the same standard as the district court. Turner v. Baylor Richardson
Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007). A party is entitled to summary

       1
        The record is not precisely clear as to these numbers, but the difference between being
seen 9 or 10 times out of 12 requests is not material to the subsequent analysis.

                                              2
                                  No. 09-10550

judgment only 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 movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(c). On a motion for summary judgment, the court must view the facts in the
light most favorable to the non-moving party and draw all reasonable inferences
in its favor. See Hockman v. Westward Commc’ns, LLC, 407 F.3d 317, 325 (5th
Cir. 2004).
                                 III. ANALYSIS
      The doctrine of qualified immunity provides protection against suit to
government officials unless their conduct violates a clearly established
constitutional right. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). We apply a
two-step test, now discretionary, to determine whether government officials are
entitled to qualified immunity. Pearson v. Callahan, 129 S.Ct. 808, 818 (2009).
First, the plaintiff must show that he suffered a constitutional violation, and
then we must determine whether the action causing the violation was objectively
unreasonable in light of clearly established law at the time of the conduct.
Freeman v. Gore, 483 F.3d 404, 410 (5th Cir. 2007).
      The Fourteenth Amendment requires the state to provide for the “basic
human needs” of pretrial detainees, including the right to adequate medical care.
See Hare v. City of Corinth, 74 F.3d 633, 639 (5th Cir. 1996). In order to establish
a constitutional violation of this right, a detainee must show that the defendant
acted with deliberate indifference to his serious medical needs, meaning that the
defendant was subjectively aware of a substantial risk of serious harm and failed
to take reasonable measures to abate that risk. Id. at 647-48. In other words, a
detainee must show that the defendant “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.” Johnson v. Treen, 759 F.2d 1236, 1238 (5th Cir. 1985). A delay in

                                         3
                                 No. 09-10550

providing medical care is not a violation of this constitutional right unless it
results in substantial harm. Mendoza v. Lynaugh, 989 F.2d 191, 195 (5th Cir.
1993). Further, negligent medical care does not constitute a valid § 1983 claim.
Id.
      Lacy alleges that, throughout his detention, he was in need of certain
medications to treat his schizophrenia, and that Dr. Shaw was deliberately
indifferent in failing to provide such medications despite knowing that Lacy had
been previously diagnosed with schizophrenia and was currently reporting
schizophrenic symptoms (hearing whispering voices). Dr. Shaw’s affidavit attests
that Lacy never presented any true symptoms of schizophrenia and that Lacy
was never disorganized, hallucinatory, or delusional. The report of a neutral
expert agreed upon by both parties found that the symptoms with which Lacy
presented were not suggestive of psychosis or schizophrenia, but of malingering
and drug-seeking.
      The evidence presented may raise a genuine issue of fact as to whether
Lacy was actually suffering from schizophrenic symptoms during his
incarceration, but it comes nowhere near raising a genuine issue of material fact
as to whether Dr. Shaw acted with deliberate indifference to Lacy’s complaints.
Lacy submitted twelve sick requests and saw Dr. Shaw nine or ten times,
usually at the next sick call after the request was submitted. Dr. Shaw
prescribed medication for Lacy’s anxiety, depression and insomnia, and adjusted
the medication and dosage when necessary. Lacy’s alleged symptom of
schizophrenia, hearing whispering voices, did not strike Dr. Shaw or the
independent expert as being consistent with schizophrenia, particularly in
conjunction with Lacy’s affect and presentation.
      At most Lacy’s allegations give rise to an inference that Dr. Shaw knew
Lacy had previously been diagnosed with schizophrenia and was presenting with
symptoms that Dr. Shaw believed were consistent with anxiety, depression, and

                                       4
                                    No. 09-10550

insomnia – all of which Dr. Shaw treated. Dr. Shaw’s failure to acquiesce to
Lacy’s insistence that he required a particular regimen of medications Dr. Shaw
did not find appropriate does not rise to the stringent level of deliberate
indifference in the provision of medical care to a detainee. The four-week delay
in treating Lacy’s insomnia and anxiety appears to have resulted from some
confusion concerning the entering of an order for a prescription Dr. Shaw in fact
provided. Even if this lapse were Dr. Shaw’s fault, Lacy has not alleged any
substantial harm from this moderate delay, and it therefore does not rise to the
level of deliberate indifference.
                               IV. CONCLUSION
      For the foregoing reasons the judgment of the district court is AFFIRMED.




                                         5
