1 UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 98-60644

LENARD G. GIBBS,

Plaintiff-Appellant,

VERSUS

H.M. (MACK) GRIMMETTE, et al.,

Defendants

H.M. (MACK) GRIMMETTE, Sheriff of Bolivar County, MS;

CHARLES (MOON) ANDERSON, Jail Administrator of Bolivar

County, MS

Defendants-Appellees.

******************************

No. 98-60809

LENARD G. GIBBS,

Plaintiff-Appellant,

VERSUS

H.M. (MACK) GRIMMETTE, et al.,

Defendants

CHARLES (MOON) ANDERSON, Jail Administrator of Bolivar County MS;

WILLIE DIXON; ALIENE DOWNS, RN; MANDY PREWITT, RN;

JANE SHOOK, RN,

Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of Mississippi, Oxford

June 15, 2001* Judge of the United States Court of International Trade, sitting

by designation.

2 Before STEWART, PARKER, Circuit Judges, and GOLDBERG, Judge. *

ROBERT M. PARKER, Circuit Judge:

This case involves a claim under 42 U.S.C. § 1983 by Appellant

Lenard G. Gibbs, a pretrial detainee, against Sheriff Mack

Grim m ette, two county deputies, and three nurses from the Bolivar

County Department of Health for failure to administe r Gibbs a

tuberculosis skin test. Gibbs appeals from the district court’s

order granting Sheriff Grimmette’s motion for summary judgment and

the court’s order g ranting the remaining defendants’ motion for

judgment as a matter of law.

I.

Lenard Gibbs was confined in the Bolivar County Jail in Bolivar

County, Mississippi from Decembe r of 1992 to July of 1993. In

January of 1993, three nurses, acting on behalf of the Mississippi

Department of Corrections, arrived at the Bolivar County Jail to

administer tuberculosis skin tests on state inmates. Gibbs claimed

that he requested the test, but prison officials and the nurses from

the health department refused his request because he was a pretrial

detainee. Upon his transfer to another correction facility in

August of 1993, Gibbs tested positive for tuberculosis.

Gibbs filed suit under 42 U.S.C. § 1983 against H.M. Grimmette,

Sheriff of Bolivar County, Charles Anderson, an administrator at the

Bolivar County Jail, Willie Dixon, the head jailer at the Bolivar3

County Jail, the Bolivar County Health Department, the Mississippi

State Department of Health, and three nurses from the Bolivar County

Health Depart ment, Aliene Downs, Mandy Prewitt, and Jane Shook.

Gibbs claimed that, had he been tested earlier, he could have

avoided exposure to the disease or received preventative medication

that would have allayed his mental anguish. Gibbs argued that his

request for the tuberculosis test was denied even though the

defendants knew that there was a high risk of tuberculosis in the

Bolivar County Jail. Gibbs also maintained that the preventative

medication dam aged his liver and heart. According to Gibbs, this

amounted to deliberate indifference to his medical needs.

The district court dismissed the Mississippi D epartment of

Health and granted summary judgment dismissing all claims against

Sheriff Grimmette as well as some of Gibb’s claims against Anderson

and Dixon. Gibbs filed two Rule 60(b) motions seeking reinstatement

of his claims against Sheriff Grimmette. The district court denied

both motions , but never entered a final judgment. Gibbs filed a

notice of appeal after the district court denied his second motion.

The appeal was designated case number 98-60644.

Gibbs proceeded to trial against the remaining defendants. At

the close of Gibbs’ case, the district court granted the defendants’

motion for judgment as a matter of law. The court determined that

the three nurses did not vi o late Gibbs’ constitutional rights and

therefore were entit l ed to qualified immunity. The court also

concluded that testing for t uberculosis in January as opposed to4

August would not have altered the treatment or diagnosis of the

disease and that, in any event, Gibbs had not developed an active

case. Because Gibbs suffered no injury, the district court

determined that there was no factual issue for the jury and

dism i ssed the remaining claims against Anderson and Dixon. Gibbs

filed a notice of appeal from the district court’s final judgment.

The clerk of this Court designated the a ppeal as case number 98-

60809 and consolidated the appeal with case number 98-60644.

II.

We first address whether the district court erred by granting

the defendants’ motion for judgment as a matter of law. We review

the district court’s order under a de novo standard, examining the

evidence in the light most favorable to the nonmovant. S ee Russell

v. McKinney Hosp. Venture , 235 F.3d 219, 221 (5th Cir. 2000).

Judgment as a ma tter of law is appropriate if “the facts and

inferences point so strongly and overwhelmingly in favor of the

moving party [that] no r easonable jurors could have arrived at a

contrary verdict.” See McCoy v. Hernandez , 203 F.3d 371, 374 (5th

Cir. 2000). “A mere scintilla of evidence is insufficient to

present a question for the jury

. . ..” B oeing Co. v. Shipman

, 411

F.2d 365, 374-74 (5th Cir. 1969) (en banc).

Defendants Charles Anderson, Willie Dixon, and the three nurses1 Gibbs claims that he has a liberty interest under the

Mississippi laws that require the Board of Health to enact

regulations for the prevention of disease. State-created liberty

interests are “generally limited to freedom from restraint which,

while not exceeding the sentence in such an unexpected manner as to

give rise to protection by the Due Process Clause of its own force,

nonetheless imposes atypical and significant hardship on the inmate

in relation to the ordinary incidents of prison life.” Sandin v.

Conner, 515 U.S. 472, 483-84 (1995). The denial of a tuberculosis

skin test does not amount to the deprivation of a liberty interest

implicating Gi bbs’ right to due process under the Fourteenth

Amendment. S ee Berry v. Brady

, 192 F.3d 504, 508 (5th Cir. 1999).

5 from the Bolivar County Health Department were entitled to qualified

immunity as long a s their conduct did not violate a clearly

established statutory or constitutional right of which a reasonable

person should have known. S ee Harlow v. Fitzgerald

, 457 U.S. 800,

818 (1982). Under Mississippi statute, correctional facilities are

required to administer tuberculosis tests to state offenders,

federal offenders and offender s from any other jurisdiction. S ee

M ISS

. C ODE A NN

. § 41-23-1(10). The statute does not consider pretrial

detainees. Gibbs therefore did not have a statutory right to

tuberculosis testing. 1

“The constitutional rights of a pretrial detainee flow from the

procedural and substantive due process guarantees of the Fourteenth

Amendment

. . ..” Olabisiomotosho v. City of Houston

, 185 F.3d 521,

525 (5th Cir. 1999) (citing Bell v. Wolfish , 441 U.S. 520, 535

(1979). Gibbs argues that pretrial detainees should have the same

access to medi cal care as state inmates under the Fourteenth

Amendment. He suggests that local policies which preclude pretrial2 The appro priate standard to apply in analyzing constitutional

challenges by pre trial detainees depends on whether the alleged

unconstitutional c onduct is a “condition of confinement” or

“episodic act or omission.” S ee Scott v. Moore

, 114 F.3d 51, 53

(5th Cir. 1997) (en banc). When the alleged constitutional

violation is a particular act or omission by an individual that

points to a derivative policy or custom of the municipality, we

6 detainees from mandatory tuberculosis testing are unconstitutional

when state inmates are tested annually pursuant to state law.

This Court has recogni zed that there is no significant

distinction between pretrial detainees and convicted inmates

concerning basic human needs such as medical care. S ee Hare v. City

of Corinth, MS

, 74 F.3d 633, 643 (5th Cir. 1996) (en banc).

Although we have not require d correctional facilities to apply

identical measures for preventing the spread of commun i cable

diseases, we hav e applied the same standard for assessing the

constitutional claims of both pretrial detainees and state inmates.

See id

. S ee also Barrie v. Grand County, Utah

, 119 F.3d 862, 868-69

(10th Cir. 1997) (holding that pretrial detainees are owed the same

duty of medical care as pretrial detainees). When the alleged

unconstitutional conduct involves an episodic act or omission, the

question is whether th e state official acted with deliberate

indifference to th e inmate’s constitutional rights, regardless of

whether the individual is a pretrial detainee or state inmate. See

id. at 645, 647 (citing Farmer v. Brennan

, 511 U.S. 825 (1994));

Sibley v. Lemaire

, 184 F.3d 481, 489 (5th Cir. 1999), cert. denied

,

529 U.S. 1019 (2000). 2 We therefore do not require identicalapply the deliberate indifference standard. S ee id

. at 53-54.

Gibbs’ com plaint that the defendants refused to test him for

tuberculosis qualifies as an “episodic act or omission.”

7 procedures for detecting communicable diseases as long as the

failure to detect an illness d oes not amount to deliberate

indifference to a pretrial detainee’s basic medical needs.

To prove deliberate indifference, a pretrial detaine e must

show that the state official knew of and disregarded an excessive

risk to the inmate’s health or safety. S ee Stewart v. Murphy

, 174

F.3d 530, 534 (5th Cir. 1999). Deliberate indifference is more than

mere n egligence in failing to supply medical treatment. S ee id. ;

Williams v. Treen

, 671 F.2d 892, 901 (5th Cir. 1982). Disagreement

with medical treatment alone can not support a claim under § 1983.

See Norton v. Dimazana , 122 F.3d 286, 292 (5th Cir. 1997).

Gibbs argues that the defendants’ refusa l to administer the

tuberculosis test upon his request amounted to deliberate

indifference to his medical needs. Gibbs complains first of the

defendants’ individual omissions and then points derivatively to the

policy of the Sheriff of Bolivar County. S ee Scott

, 114 F.3d at 53.

We analyze an official’s personal liabilit y for discrete acts or

omissions un der a subjective deliberate indifference test. A

municipality’s liability for an alleged unconstitutional policy or

custom, however, requires an objective analysis. S ee

Olabisiomotosho , 185 F.3d at 526.

The undisputed testimony from two expert witnesses established8

that only an active case of tubercu losis is contagious. Exposure

to an individual with an active case of tuberculosis may result in

the production of antibodies which would produce a positive skin

test in the tested individual. If the skin of the tested individual

exhibits a certain degree of reaction, a chest x-ray is recommended

to determine if there is evidence of tuberculosis symptoms. The

separation of ot h er inmates from the tested individual is only

necessary if the individual has objective symptoms of tuberculosis

in addition to the skin test. In addition, mere exposure to an

individual who has a positive skin test does not require the person

to be tested for the disease. An individual suffering from an

active case of tuberculosis would have the symptoms of an abnormal

chest x

- ray, coughing up blood, losing weight, running fever, and

experiencing night sweats.

If an individual formerly tested negative and then receives a

posit ive skin test result, it is an indication that he has been

exposed to a person with active tuberculosis. A positive skin test

result does not mean that the person will e xhibit symptoms of

tuberculosis in the future. It cannot be determined whether the

tested individual had been exposed to tuberculosis a month or six

months before showing a positive skin test.

Gibbs was incarcerated at the Bolivar County Jail as a pretrial

detainee on December 23, 1992, and remained in that facility until

he was transferred as a convicted state prisoner on July 28, 1993.

Gibbs testified that he tested negative for tuberculosis four months9

before he was incarcerated.

Officials at the Bolivar County Jail received information from

a health center in mid-December 1992 that an inmate, who had been

transferred to the jail the prior evening, was undergoing treatment

for an active case of tuberculosis. Deputy Anderson testified that

the inmate was immediately transferred from the jail. Nurses from

the health department tested inmates who came into contact with the

infected individual, but the test results were negative. According

to medical testimony, it was unnecessary to test everyone in the

jail because o f the brief period in which the infected inmate was

incarcerated.

Pursuant to state law, nurses Downs, Prewitt and Shook tested

state inmates for tuberculosis on January 11, 1993. Gibbs testified

that his alleged requests for the test in January were denied by the

nurses and the prison officials. He claimed that one inmate who

tested positive for exposure to the disease subsequently exhibited

signs of an active case. According to expert witness Dr. John Dial,

an employee of the Mississippi Department of Corrections, there was

no evidence or diagnosis of an active case of tuberculosis in the

Bolivar County Jail to which Gibbs could have been exposed.

Because the defendants did not know of any diagnosed active

cases of tuberculosis that could have infected Gibbs, they did not

act with subjective deliberate indifference by refus ing to

administer the skin test. S ee Scott v. Moore , 114 F.3d at 54. In3 We note that the record sh ows that Gibbs was not physically

injured from receiving the test in August instead of January.

Diagnosis and treatment of the disease in January as opposed to

August would have been the same. Gibbs has never exhibited signs

of an active case of tuberculosis, and after receiving preventative

medication, the likelihood that he ever will show symptoms of the

disease is extremely low.

Gibbs claims that the preventative medication damaged his heart

and liver, but we fail to see how the defendants’ refusal to test

him for the disease caused these alleged injuries. The

preve ntative treatment given to Gibbs after the August skin test

was not, by itself, deliberate indifference to his medical needs.

10 addition, the general policy of the Bolivar County Jail and Bolivar

County Health Department to require testin g of only those

individuals who show symptoms of active tuberculosis or those who

have come into contact with an infected individual does not amount

to objective deliberate indifference to the medical needs of

pretrial detainees. S ee id

. If Gibbs was exposed to tuberculosis

during his incarceration at the facility, then failure of the jail

and health department officials to detect an active case of

tuberculosis amounted to, at most, negligence, which is not

actionable under § 1983. We therefore conclude that the trial court

did not err in granting the defendants’ motion for summary

judgment. 3

II.

Gibbs argues that the district court erred by granting Sheriff

Grimmette’s motion for summary judgment. Gibbs filed a notice of

appeal from the district court’s denial of his Rule 60(b) motion.

“Where, as here, an action involves multiple parties, a disposition4 Gibbs complains that Dr. Alfio Rausa was a named defendant and

was the county health officer responsible for enforcing the rules

and regulations necessary to prevent the spread of contagious

disea ses. Regardless of whether or not Gibbs adequately amended

his complaint to add Dr. Rausa as a defendant, his potential claims

against the doctor would be dismissed as a matter of law.

11 of the action as to only some of th e parties does not result in a

final appealable order absent a certification by the district court

under Federal Ru le of Civil Procedure 54(b).” T ransit Mgmt. of

Southeast Louisiana, Inc. v. Group Ins. Admin., Inc.

, 226 F.3d 376,

381 (5th Cir. 20 00). When “the record clearly indicates that the

district court failed to adjudicate the rights and liabil i ties of

all parties, the order is not, and cannot be presumed to be final,

irrespective of the district court’s intent.” W itherspoon v. White

,

111 F.3d 399, 402 (5th Cir. 1997). We therefore dismiss Gibbs

appeal for lack of jurisdiction in case number 98-60644.

The district court entered its final judgment dismissing Gibbs

claims against all the defendants on December 10, 1998. Gibbs filed

a notice of appeal f rom the judgment on December 21, 1998, over

which this Court has appellate jurisdiction. Because the Sheriff’s

policy for detecting and treating tuberculosis did not amount to

deliberate indifference and becasue the Sheriff had no personal

knowledge of Gibbs’ desire to be tested, the district court’s final

judgment dismissing th e claims against the Sheriff in both his

official and individual capacities is affirmed. 4

III.12

While state inmates and pretrial detainees risk tuberculosis

infection while incarcerated in the Bolivar County Jail, we do not

think that the lack of mandatory skin tests for all pretrial

detainees amounts to deliberate indifference to their medical needs.

We therefore affirm the district court’s final judgment and deny any

other relief Gibbs requests on appeal.

AFFIRMED