*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opinion should not be published and is not precedent except under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. 02-10499

Summary Calendar

 

STEVEN KURT MIKESELL,

Plaintiff-Appellant,

versus

JAY BROWN, Sheriff; 

LIEUTENANT PULSE, Administrator; 

SERGEANT GRIEVER, Staff Supervisor,

Defendants-Appellees.

 

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 4:99-CV-229-Y

 

December 23, 2002

Before GARWOOD, JOLLY, and SMITH, Circuit Judges.

PER CURIAM:*

Steven Kurt Mikesell, Texas prisoner # 841274, appeals the

district court’s grant of summary judgment for the defendants in

his 42 U.S.C. § 1093 civil rights action. Mikesell argues that the

district court improperly decided disputed factual issues in
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granting summary judgment. He contends that he alleged in his

original complaint, under penalty of perjury, that the defendants

failed to provide him with proper medical care and a proper diet.

He contends that they ran out of his medication “many times” and

gave him expired medications. He contends that his complaint

squarely contradicts the factual allegations of the defendants.

In support of their motion for summary judgment, the

defendants presented, among other evidence, an affidavit of Dr.

Michael Hueber, the physician charged with providing medical care

to Mikesell while Mikesell was confined to the Parker County Jail,

from December 20, 1997 until September 29, 1998. According to Dr.

Hueber, that Mikesell did not receive his Glyburide on four

occasions and had to mix his own insulin using insulin that was

past its expiration date did not cause him harm because his

documented blood sugar levels did not vary from his norm. Further,

based on the evidence that Mikesell received two insulin shots each

day, two snacks each day, and his other medications each day for

almost a year, with the exception of two occasions (one in June and

one in August) when the jail ran out of Glyburide, causing him to

miss a total of four doses (two on each occasion), the undisputed

summary judgment evidence does not demonstrate deliberate

indifference in the defendants’ treatment of his diabetes. Sgt.

Griever’s responses to Mikesell’s grievances demonstrate exactly

the opposite, namely that the defendants promptly sought to remedy
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the problems Mikesell brought to their attention and sought to

prevent their reoccurrence. Moreover, Mikesell was prescribed a

2800 calorie diet, in accordance with a food plan designed to

accommodate his diabetes. The dietician reviewed each day’s menu

to see if the regularly scheduled meal met the special requirements

of particular inmates. Mikesell received three meals a day and two

snacks.

Mikesell did not file a response to the defendants’ motion for

summary judgment, nor has he identified any disputed factual issues

in his brief. He relies upon the broad, general allegations made

in his original complaint that the defendants failed to provide him

with proper medical treatment and a proper diet. These allegations

are not sufficient. Where the opposing party moves for summary

judgment, the non-movant needs to produce evidence or designate

specific facts showing the existence of a genuine issue of material

fact necessitating trial. Celotex Corp. v. Catrett, 477 U.S. 317,

322-24 (1986). 

As the district court correctly noted, an amended complaint

supersedes the original complaint and renders it of no legal effect

unless the amended complaint specifically refers to and adopts or

incorporates by reference the earlier pleading. King v. Dogan, 31

F.3d 344, 346 (5th Cir. 1994); Boelens v. Redman Homes, Inc., 759

F.2d 504, 508 (5th Cir. 1985). Applying this rule, Mikesell’s

amended complaint is the only effective complaint, as the district
1In construing Mikesell’s complaint, this Court is aware of

its duty to interpret liberally the pleadings of pro se litigants.

See Mehroder v. Phelps, 608 F.2d 1023, 1025 (5th Cir. 1979). Such

litigants, however, are not free from the rules of procedure

applicable to other parties. See Green v. Darrell, 969 F.2d 915,

917 (5th Cir. 1992). 

4

court had clearly set forth in its order of January 25, 2002, over

a month before appellees’ motion for summary judgment was filed.

That amended complaint is not only unverified, but it also does not

contain allegations that would defeat summary judgment.1

Mikesell’s unsubstantiated and unsworn assertions are not competent

summary judgment evidence. Abbott v. Equity Group, Inc., 2 F.3d

613, 619 (5th Cir. 1993); Nissho-Iwai American Corp. v. Kline, 845

F.2d 1300, 1306 (5th Cir. 1988). Mikesell, therefore, has failed

to carry his burden of producing evidence or designating specific

facts sufficient to show the existence of a genuine issue of

material fact. Accordingly the district court did not err in

granting the defendants’ motion for summary judgment. 

Mikesell also argues that the district court abused its

discretion in not granting his motion for appointment of counsel.

He contends that his account was in direct conflict with the

defendants’. He maintains that based on his lack of legal

training, the complexity of the case, his request for a jury trial,

and the merits of his case, counsel should have been appointed.

In its order denying appointed counsel, the district court

considered the appropriate factors and determined that the law in
5

the case was well-developed and that the plaintiff appeared able to

represent himself. Ulmer v. Chancellor, 691 F.2d 209, 213 (5th

Cir. 1982). As the case developed, a need for counsel did not

develop. Contrary to Mikesell’s assertions, the defendants’

summary judgment evidence did not contradict his allegations;

rather, the defendants admitted that they ran out of Glyburide and

70/30 insulin on the occasions he alleged. The disagreement was in

the interpretation of this evidence in the context of the course of

Mikesell’s diabetes treatment while incarcerated at the Parker

County Jail. Once the defendants produced their summary judgment

evidence, it became clear that there was no factual dispute in this

case requiring a trial, and thus, no need for appointed counsel.

The district court did not abuse its discretion in denying

Mikesell’s motion for appointed counsel. Branch v. Cole, 686 F.2d

264, 266 (5th Cir. 1982).

AFFIRMED