* 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that this opinion should not be published and is not precedent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. 98-20976

Summary Calendar

 

ROSEMARY SMITH ET AL.,

Plaintiffs,

ROSEMARY SMITH; NORMA SMITH; Individually

and as Next Friend of Amanda Smith, an Infant;

AUDREY M. SMITH; GABRIELLE M. SMITH,

Plaintiffs-Appellants,

versus

HARRIS COUNTY; 

TOMMY THOMAS, Harris County Sheriff,

Defendants-Appellees.

--------------------

Appeal from the United States District Court

for the Southern District of Texas

USDC No. H-97-CV-1956

--------------------

October 6, 1999

Before KING, Chief Judge, and HIGGINBOTHAM and STEWART, Circuit

Judges.

PER CURIAM:*

Plaintiff-Appellants, the heirs of Otha Audrey Smith, appeal

the district court’s grant of summary judgment in favor of 
No. 98-20976 

-2-

2

Defendants-Appellees, Harris County, Texas, and Sheriff Tommy

Thomas. We AFFIRM.

Otha Smith died in 1997 while in the custody of the Harris

County Jail. Mr. Smith had been arrested for violating his

parole. Upon being taken into custody, Mr. Smith was given a

full medical examination that included testing for tuberculosis

(TB). Mr. Smith tested positive for TB. Pursuant to prison

protocol, Mr. Smith was placed on a “preventive therapy” regime. 

This regime included taking the prescription drug Isoniazid

(INH). Approximately five months after beginning INH treatment

Mr. Smith experienced an extreme adverse reaction to the drug. 

Even though prison doctors promptly took Mr. Smith off INH, Mr.

Smith’s reaction to INH caused his liver to fail and eventually

led to his death. 

Mr. Smith’s heirs filed this action under 42 U.S.C. § 1983,

asserting that Sheriff Thomas and Harris County caused Mr.

Smith’s death by failing to detect and diagnose his toxic

reaction to INH in time to save his life. The Smiths further

contend that the Defendants-Appellees’ failure to adequately

train and supervise Harris County Jail personnel caused Mr.

Smith’s death from INH toxicity. 

This court reviews a grant of summary judgment de novo,

using the same standard applicable in the district court. 

Matagorda County v. Law, 19 F.3d 215, 217 (5th Cir. 1994). 

Summary judgment is proper when, viewing the evidence in the
 

1 Both parties analyze the Smiths’ claims as though they

arise under the Eighth Amendment. The Eighth Amendment, however,

applies only to convicted prisoners. See Downey v. Denton

County, 119 F.3d 381, 385 n.7 (5th Cir. 1997). Because Mr. Smith

was in prison awaiting a probation revocation hearing, his status

was more akin to that of a pretrial detainee. See Hamilton v.

Lyons, 74 F.3d 99, 104-06 (5th Cir. 1996). Therefore, the

Smiths’ claims flow from the Fourteenth, rather than the Eighth,

Amendment. Regardless, the governing standard for deliberate

indifference remains the same for both a pretrial detainee or a

post-conviction prisoner. See Hare v. City of Corinth, 74 F.3d

633, 643 (5th Cir. 1996). 

3

light most favorable to the nonmovant, there is no genuine issue

as to any material fact and the moving party is entitled to

judgment as a matter of law. Amburgey v. Corhart Refractories

Corp., Inc., 936 F.2d 805, 809 (5th Cir. 1991); Fed. R. Civ. P.

56(c). If the moving party meets the initial burden of

establishing that there is no genuine issue, the burden shifts to

the nonmoving party to produce evidence of the existence of a

genuine issue for trial. Little v. Liquid Air Corp., 37 F.3d

1069, 1075 (5th Cir. 1994) (en banc). The nonmovant cannot

satisfy his summary judgment burden with conclusory allegations,

unsubstantiated assertions, or mere scintillas of evidence. Id.

Because Mr. Smith was awaiting a probation revocation

hearing at the time of his death, his status is that of a

pretrial detainee. See Hamilton v. Lyons, 74 F.3d 99, 104-06

(5th Cir. 1996).1 If a jail official’s episodic acts or

omissions violate the constitutional rights of a pretrial

detainee, the official is liable to the detainee only if the

official’s acts or omission constitute subjective deliberate

indifference. Farmer v. Brennan, 511 U.S. 825 (1994). See also
4

Hare v. City of Corinth, 74 F.3d 633 (5th Cir. 1996). A prison

official acts with deliberate indifference “only if he knows that

inmates face a substantial risk of serious harm and disregards

that risk by failing to take reasonable measures to abate it.” 

Farmer v. Brennan, 511 U.S. at 847. 

The district court did not err in granting summary judgment

with regard to the claims against Sheriff Thomas. The Smiths

offered no evidence that Sheriff Thomas had subjective knowledge

that Mr. Smith was having a reaction to the INH he was being

given or that this reaction was potentially deadly. As such, the

Smiths have presented no genuine issue of fact indicating that

Sheriff Thomas violated Mr. Smith’s constitutional rights. 

Similarly, to the extent that the plaintiffs assert that

Harris County is liable because its employees failed to recognize

that Mr. Smith was suffering from INH toxicity, their claim is

unpersuasive. It is clearly established that “[a] [county] may

not be held strictly liable for the acts of its non-policy-making

employees under a respondeat superior theory." Colle v. Brazos

County, 981 F.2d 237, 244 (5th Cir. 1993). Nor may it be held

liable under § 1983 for mere negligence in oversight. See Rhyne

v. Henderson County, 973 F.2d 386, 392 (5th Cir. 1992). Because

the guards and physicians at the Harris County Jail are “nonpolicy-making employees,” Harris County cannot be held

vicariously liable for their failure to recognize Mr. Smith’s

allegedly manifest symptoms of INH toxicity.
5

Equally unavailing is the plaintiffs’ claim that the

defendants failed to supervise adequately the personnel of the

Harris County Jail. The plaintiffs have offered no competent

evidence that the guards at the Harris County Jail have a history

of failing to provide necessary medical attention. See Hinshaw

v. Doffer, 785 F.2d 1260, 1263 (5th Cir. 1986). In fact, the

record indicates that Mr. Smith’s own behavior potentially

delayed a diagnosis of INH toxicity. The record shows that Mr.

Smith gave inconsistent descriptions of his illness to clinic

personnel, failed to give a complete medical history upon

incarceration, and deliberately failed to provide a urine sample

when requested.

Furthermore, the record indicates that every time Mr. Smith

requested medical attention he was seen by a prison nurse. There

is no evidence, other than the uncorroborated affidavits of the

Plaintiffs-Appellants, that Mr. Smith did not receive medical

attention when requested. Additionally, Mr. Smith did not admit

to having, or begin to show, any symptoms of INH toxicity until

February 4, 1997, four months after he began taking INH. The

affidavits of Plaintiffs-Appellants Rosemary and Audrey Smith

alleging that the jail failed to provide adequate medical

treatment, standing alone, are insufficient to indicate

deliberate indifference in the supervision of jail employees by

Harris County Jail officials. These affidavits, therefore, fail

to set forth the specific facts necessary to sustain a claim
6

against Harris County or Sheriff Thomas as required by Fed. R.

Civ. P. 56(e). 

Lastly, the plaintiffs have failed to adequately brief their

contention that the policies of the Harris County Jail governing

the health, welfare, and supervision of inmates are inadequate. 

Accordingly, this issue has been abandoned on appeal. See Yohey

v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).

For the foregoing reasons the district court’s grant of

summary judgment in favor of the Defendants-Appellees is

AFFIRMED.