United States Court of Appeals

for the Fifth Circuit

No. 20-40540

Jacqueline Cortez-Burlingame, Individually and as the 

Representative of the Estate of Jorge "George" Luis Cortez; Estate of 

Jorge "George" Luis Cortez; Jenny Espinoza; Amelia M. 

Cortez, 

Plaintiffs—Appellants,

versus

Galveston County; Henry Trochesset, in his Individual 

Capacity; Mary Johnson, in her Individual Capacity; 

Boon-Chapman Benefit Administrators, Incorporated; 

Soluta Health, Incorporated; Kathy White, Registered 

Nurse, in her Individual Capacity, also known as Kathy Jean Jordan; 

Garry Killyon, in his Individual Capacity; Kimberly Boykins, in 

her Individual Capacity; John Doe Jailers 1-25, in their Individual 

Capacities; John Doe Policymakers 1-25, in their Individual 

Capacities; Doe medical providers 1-25, in their Individual 

Capacities; Dr. Gary Beach, 

Defendants—Appellees.

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 3:18-CV-183

Before Dennis, Elrod, and Duncan, Circuit Judges.

United States Court of Appeals

Fifth Circuit

FILED

April 14, 2022

Lyle W. Cayce

Clerk

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Per Curiam:*

Jorge Cortez died in the hospital following incarceration at the 

Galveston County Jail. As a result of Cortez’s death, his estate and several 

family members (collectively “Plaintiffs”) brought suit against Galveston 

County, Sheriff Henry Trochesset, and several medical providers who 

worked at the Galveston County Jail (collectively “Defendants”), arguing, 

inter alia, that Defendants’ medical treatment of Cortez while he was

incarcerated at the jail had been deliberately indifferent in violation of his 

constitutional rights. The district court dismissed all of Plaintiffs’ federal 

claims at the summary judgment stage, adopting the magistrate judge’s 

report and recommendation and holding that Plaintiffs failed to raise a triable 

issue of fact that Defendants acted with deliberate indifference. Because we 

agree with the district court that Plaintiffs failed raise a material issue of fact 

as to whether Cortez’s constitutional rights were violated by failing to 

adequately plead that Defendants acted with deliberate indifference, we 

AFFIRM.

I.

On April 7, 2017, Jorge Cortez, then fifty-six, was taken into the 

custody of Galveston County Jail following a parole violation, pending 

placement in a drug treatment facility. At this time, unbeknownst to Cortez, 

or anyone, he was already suffering from advanced mesothelioma, an 

aggressive lung cancer. Between April 7 and May 31, Cortez was seen by 

medical personnel at the jail at least thirteen times. On May 31, Cortez was 

taken by ambulance to the University of Texas Medical Branch at Galveston. 

After twenty-four days in the hospital, Cortez was diagnosed with 

* Pursuant to 5th Circuit Rule 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 Circuit Rule 47.5.4.

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mesothelioma. He died as a result of complications from this disease on June 

23. 

As a result, Plaintiffs filed this suit arguing that Defendants’ medical 

treatment of Cortez while he was incarcerated at the jail had been deliberately 

indifferent to Cortez’s serious medical needs in violation of his Eighth 

Amendment constitutional rights. They also advanced urging both 

governmental and supervisory liability claims, as well as claims under state 

law. The district court dismissed all of Plaintiffs’ federal claims at the 

summary judgment stage, adopting the magistrate judge’s report and 

recommendation and holding that Plaintiffs had failed to raise a triable issue 

of fact that Defendants acted with deliberate indifference and, in the 

alternative, that Plaintiffs’ wrongful death claim was barred by Texas state 

law’s 50% survival doctrine. Having disposed of Plaintiffs’federal claims, the 

district court declined to exercise pendant jurisdiction over Plaintiffs’ state 

law claims.1

 Plaintiffs now appeal to this court, arguing that the district court 

erred in granting summary judgment to Defendants. 

II.

This court reviews a summary judgment ruling de novo, applying the 

same standards as the district court, Johnson v. World All. Fin. Corp., 830 F.3d 

192, 195 (5th Cir. 2016), viewing the facts in the light most favorable to the 

non-moving party, and drawing all reasonable inferences in its favor, Deville 

v. Marcantel, 567 F.3d 156, 163–64 (5th Cir. 2009). Summary judgment 

should be granted only when there is “no genuine dispute [for] any material 

fact and the movant is entitled to judgment as a matter of law.” FED. R.

CIV. P. 56(a); see, e.g., Celtic Marine Corp. v. James C. Justice Cos. Inc., 760 

1 Plaintiffs do not challenge the district court’s refusal to exercise pendant 

jurisdiction over his state law claims on appeal. 

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F.3d 477, 481 (5th Cir. 2014). “When assessing whether a dispute to any 

material fact exists, we consider all of the evidence in the record but refrain 

from making credibility determinations or weighing the evidence.” Turner 

v. Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007). “[T]he 

evidence of the nonmovant is to be believed, and all justifiable inferences are 

to be drawn in his favor.” Tolan v. Cotton, 572 U.S. 650, 651 (2014) (quoting

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)). Even when the 

facts are not in dispute, summary judgment should be denied if competing 

inferences can be drawn from the undisputed facts on material issues. See 

Hunt v. Cromartie, 526 U.S. 541, 552–53 (1999) (holding that where 

reasonable inferences from undisputed facts can be drawn in favor of either 

party, it is an error for the district court to resolve a disputed fact at the 

summary judgment stage). 

But where, as here, the nonmovant has the burden of proof at trial, the 

movant may shift the summary judgment burden to the nonmovant with an 

allegation that the nonmovant has failed to establish an element essential to 

that party’s case. Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). 

Defendants therefore shifted the summary judgment burden to Plaintiffs

when they pointed out that there was no evidence of deliberate indifference. 

See Austin v. Kroger Tex., L.P., 864 F.3d 326, 335 (5th Cir. 2017). Thus, to 

survive summary judgment, Plaintiffs were required to present evidence 

creating a genuine issue of material fact regarding deliberate indifference. 

Ibid. 

III.

To successfully allege a 42 U.S.C. § 1983 claim under the Eighth 

Amendment’s prohibition against cruel and unusual punishment, Plaintiffs 

must have plausibly pleaded that a government official or officials acted with 

deliberate indifference to Cortez’s medical needs. See Domino v. Tex. Dept. 

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of Criminal Justice, 239 F.3d 752, 754 (5th Cir. 2001). “In order to state a 

cognizable claim, a prisoner must allege acts or omissions sufficiently harmful 

to evidence deliberate indifference to serious medical needs [because it] is 

only such indifference that can offend evolving standards of decency in 

violation of the Eighth Amendment.” Estelle v. Gamble, 429 U.S. 97, 106 

(1976) (internal quotations omitted). This is an “extremely high standard to 

meet.” Domino, 239 F.3d at 756. A prison official cannot be liable under the 

Eighth Amendment for deliberate indifference unless “the official knows of 

and disregards an excessive risk to inmate health or safety; the official must 

both be aware of facts from which the inference could be drawn that a 

substantial risk of serious harm exists, and he must also draw the inference.” 

Farmer v. Brennan, 511 U.S. 825, 837 (1994). 

We agree with the district court that Plaintiffs failed to carry their 

burden of creating a genuine issue of material fact regarding any Defendant’s 

deliberate indifference to Cortez’s medical needs. Negligent or inadequate 

medical treatment does not give rise to an Eighth Amendment violation. 

Gamble, 429 U.S. at 106 (1976). “Unsuccessful medical treatment, acts of 

negligence, or [even] medical malpractice do not constitute deliberate 

indifference. . . .” Gobert v. Caldwell, 463 F.3d 339, 346 (5th Cir. 2006). The 

plaintiff must show the defendant’s “actual knowledge and conscious 

disregard of the risk of harm to the plaintiff[, which] cannot be inferred from 

a prison official’s mere failure to act reasonably [or] from negligence alone.” 

Lawson v. Dallas County, 286 F.3d 257, 262–63 (5th Cir. 2002). Here,

Plaintiffs submitted a doctor’s affidavit attesting that “[a] simple chest X-ray 

. . . would have allowed jail medical staff to discover” that Cortez needed 

emergency medical care, and that if Cortez “had arrived at the hospital just 

10 days sooner” the risks would have been “much less[.]” But even taking 

these facts as true, Plaintiffs presented no evidence tending to show that any 

defendant had actual knowledge of or consciously disregarded the risk of 

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harm to Cortez. As the district court explained, “[a]t its core, Plaintiffs’ real 

complaint is that Defendants did not provide Cortez with the proper medical 

treatment and failed to timely diagnose his true medical condition.” While 

the care Cortez received may have been negligent,2 he fails to create the 

requisite genuine issue of material fact as to deliberate indifference. 

Accordingly, the district court did not err in dismissing Plaintiffs’ deliberate 

indifference claims at the summary judgment stage.

IV.

Plaintiffs also argue that the district court erred in finding that 

Defendants’ policy of allowing inmates a bottom bunk assignment only with 

a doctor’s recommendation was not deliberately indifferent. Plaintiffs argue 

that this policy is deliberately indifferent because it serves no legitimate 

government interest. Id.; see Sanchez v. Young Cnty., Tex., 956 F.3d 785, 791 

(5th Cir. 2020) (holding that, for a conditions-of-confinement claim, a 

plaintiff must show that a rule, practice, act or omission caused a 

constitutional violation, and the conduct was not reasonably related to a 

legitimate government objective.) However, Defendants point out that 

“[m]edical staff rely upon ‘bottom bunk’ criteria to allow bottom bunks to be 

assigned to those who medically need one. . . . This policy ensures bunks are 

available as needed.” This presents a legitimate government interest. 

Accordingly, the district court did not err in granting summary judgment to 

Defendants on this claim.

2 Even Defendants’ doctor-expert stated that, if a patient of his had presented with 

the symptoms Cortez complained of, he would “probably get lab work and imaging[,]”

though the expert was clear that he was not of the opinion that the care Cortez received 

amounted to malpractice. 

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V.

Finally, Plaintiffs allege that Defendants failed to preserve all videos 

of Cortez while in jail, and that this failure raises questions about the 

credibility of Defendants’ proffered evidence. Accordingly, Plaintiffs argue

that a jury could conclude that “there are credibility issue[s] based on the 

inaccurate and missing records[,]” and that this precludes summary 

judgment. Defendants argue that Plaintiffs waived this argument by failing 

to include it in their brief in opposition to summary judgment, though they

did make this argument in their objections to the Magistrate’s report and 

recommendation. In turn, Plaintiffs argue that this argument is waived 

because Defendants did not make it in responding to their objections to the 

Magistrate’s report and recommendations. 

Assuming without deciding that neither of these arguments is waived, 

Plaintiffs did not present any evidence that Defendants failed to produce any 

available video evidence; they simply reject, in a conclusory fashion,

Defendants’ contention that the footage they did provide was all that was 

available, and claim that the withheld video evidence was “relevant to show 

that [Cortez] did not receive the care Defendants claimed and to support his 

claims of deliberate indifference to serious medical needs and other issues” 

and that “[v]ideos of the clinic area and hallways would conclusively prove 

[Plaintiffs’] contentions that crucial medical care did not occur and that jail 

fabricated jail clinic medical records.” Absent any evidence of that the 

government has withheld any relevant existent footage, we find no error in 

the district court’s grant of summary judgment to Defendants.

VI.

For the foregoing reasons, we AFFIRM.

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