* 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should not be published and is not precedent except under the limited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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-20451

Summary Calendar

GEORGE V FULLER

Plaintiff-Appellant

v.

HARRIS COUNTY

Defendant-Appellee

Appeals from the United States District Court

for the Southern District of Texas

USDC No. 4:04-CV-633

Before HIGGINBOTHAM, BARKSDALE, and ELROD, Circuit Judges.

PER CURIAM:*

George V. Fuller injured his right knee while incarcerated at the Harris

County Jail. He underwent surgery to repair his knee and developed a postsurgical infection—fulminant necrotizing fasciitis—that his surgeon described

as “very rare.” He was treated with antibiotics at the jail infirmary. This

treatment was unsuccessful, and Fuller was taken to the hospital where he

underwentirrigation and debridement procedures. Unfortunately, the infection

had progressed to the point that Fuller’s life was threatened, and his right leg

United States Court of Appeals

Fifth Circuit

F I L E D

September 30, 2008

Charles R. Fulbruge III

Clerk
No. 07-20451

2

was amputated below the knee. Fuller sued Harris County under 42 U.S.C. §

1983, alleging that his medical care violated the Eighth Amendment. The

district court granted summary judgment in favor of Harris County. Fuller

appeals the district court’s decision. 

This court reviews de novo the district court’s grant of summary judgment.

Cousin v. Small, 325 F.3d 627, 637 (5th Cir. 2003). Summary judgment is

appropriate ifthe pleadings, discovery materials, and affidavits show that there

is no genuine issue as to any material fact and that the moving party is entitled

to a judgment as a matter of law. Little v. Liquid Air Corp., 37 F.3d 1069, 1075

(5th Cir. 1994).

In the context of medical care, prison officials violate the Eighth

Amendment prohibition against cruel and unusual punishment when they

demonstrate deliberate indifference to a prisoner’s serious medical needs.

Wilson v. Seiter, 501 U.S. 294, 297 (1991). The deliberate indifference standard

is high; the plaintiff must establish that the defendants “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.” Domino v. Texas Dep’t of Criminal Justice, 239 F.3d 752, 756

(5th Cir. 2001) (internal quotation marks and citation omitted). A delay in

treatment does not constitute an Eighth Amendment violation without both

deliberate indifference and a resulting substantial harm. Mendoza v. Lynaugh,

989 F.2d 191, 195 (5th Cir. 1993).

The record shows that there is no genuine issue of material fact as to

whether jail personnel demonstrated deliberate indifference to Fuller’s medical

needs. Fuller first contends that his surgery, which took place on August 19,

2003, was scheduled for July 31, 2003. Even accepting Fuller’s assertion

regarding the surgery date as true, the record contains no evidence that the

delay was the result of deliberate indifference or that the delay caused Fuller

substantial harm. 
No. 07-20451

3

With respectto the delay in treating his post-surgical infection, Fuller has

similarly failed to demonstrate deliberate indifference. Fuller contends that he

was supposed to have a surgical follow-up examination at the hospital by

September 3 but was not taken there until September 8, and that this delay led

to the spread of his infection and the amputation of his leg. However, the record

contains no evidence that any jail personnel refused to treat Fuller, ignored his

complaints, deliberately provided improper treatment, or otherwise exhibited a

wanton disregard for his medical needs. To the contrary, medical records show

that Fuller was seen numerous times in the jail’s infirmary following his

surgery, and that his post-surgical infection was both noted and treated with

antibiotics. 

Although the amputation of Fuller’s leg is tragic, the record establishes

that there is no genuine issue of material fact as to whether jail personnel

demonstrated deliberate indifference to his medical needs. Accordingly, the

district court’s judgment is AFFIRMED, and Fuller’s motion for appointment of

counsel is DENIED as moot.