UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

FELICIA SMITH, individually and

personal representative of the estate

of Thomas Tyrone Smith; THOMAS

T. SMITH, JR., by his mother and

next friend Felicia Smith; TENISHA

L. SMITH, by her mother and next

friend Felicia Smith,

Plaintiffs-Appellants,

v.

No. 96-2644

PRINCE GEORGE'S COUNTY,

MARYLAND; SAMUEL F. SAXTON,

Director of Prince George's County

Detention Center, in his individual

and official capacity; DOCTOR

BHOJRAJ, in his individual and

official capacity; CORRECTIONAL

MEDICAL SERVICES, INCORPORATED,

Defendants-Appellees.

Appeal from the United States District Court

for the District of Maryland, at Baltimore.

Catherine C. Blake, District Judge.

(CA-95-3575-CCB)

Argued: March 4, 1998

Decided: July 9, 1998

Before MURNAGHAN, ERVIN, and WILKINS,

Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Paris Authre Artis, Hyattsville, Maryland, for Appellants.

Gertrude Catherine Bartel, KRAMON & GRAHAM, P.A., Baltimore,

Maryland; Jay Heyward Creech, THE PRINCE GEORGE'S

COUNTY GOVERNMENT OFFICE OF LAW, Upper Marlboro,

Maryland, for Appellees. ON BRIEF: Franklin D. Henderson, Upper

Marlboro, Maryland, for Appellants.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

The event which precipitated the filing of this case was the sad and

untimely death of Thomas T. Smith while a pre-trial detainee at

Prince George's County Detention Center ("PGCDC") in September

1993. Mr. Smith's survivors, Felicia Smith, individually and as personal representative of Mr. Smith's estate, and his two children,

brought an action against Dr. Rajkumar Bhojraj, Correctional Medical

Services, Inc. ("CMS"), Prince George's County, and Samuel F. Saxton, Director of Prince George's County Department of Corrections,

alleging civil rights violations under 42 U.S.C.§ 1983 and various

state tort claims. The district court granted summary judgment for the

defendants on all counts, from which the plaintiffs now appeal. We

affirm.

While in custody at PGCDC, decedent Thomas T. Smith complained of a sore throat, headache, and fever. Dr. Rajkumar Bhojraj,

an employee of defendant CMS, which was under contract to provide

medical care to PGCDC inmates, examined Mr. Smith on September

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5, 1993 and diagnosed him as suffering from an upper respiratory

infection. Dr. Bhojraj prescribed antibiotics and sinus medication for

Mr. Smith and when the doctor examined him on the following day,

Mr. Smith indicated that he felt a little better. Dr. Bhojraj then

ordered Mr. Smith to be returned to him for a follow-up visit on September 18 but, for reasons that remain unclear,* this was not done and

Mr. Smith received no further medical care.

On September 26, a PGCDC officer noticed that Mr. Smith was

sweating and was leaning on his cellmate as they left the television

area. Mr. Smith told the officer that he did not feel well and had not

eaten in three to four days. The officer then informed the medical unit

that Mr. Smith needed prompt medical attention, and was told that the

information would be passed on to the next shift. More than nine

hours later another officer finally went back to Mr. Smith's cell to

check on him. By this time, Mr. Smith was comatose. He was then

taken to a hospital where he died early the next morning. An autopsy

revealed that his death was the result of a brain abscess which had

ruptured into his ventricular system.

In September 1994, the plaintiffs brought a claim for wrongful

death, medical malpractice, negligence, and other torts in Maryland's

Health Claims Arbitration Office, as required under Maryland Code

Annotated, Courts & Judicial Procedure § 3-2A-04 (1995). Citing the

lack of medical testimony to support the plaintiffs' claims, the Health

Claims Arbitration panel granted summary judgment to the defendants. The plaintiffs then brought suit, as was their right, in U.S. District Court, alleging the same tort actions and adding a claim for civil

rights violations.

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*The appointment book used to generate the "sick call" list of inmates

to be seen by Dr. Bhojraj is missing for the dates in question. It is therefore impossible to determine whether Mr. Smith was not taken to his

September 18 appointment because the staff failed to put him on the sick

call list, as the plaintiffs allege, or for some other reason. Because the

medical staff's failure to attend to Mr. Smith on September 18 was not

the proximate cause of his death, however, the reason behind this missed

appointment is not a material fact, and is therefore insufficient to allow

the plaintiffs to survive summary judgment.

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The district court allowed additional discovery, and the plaintiffs

deposed two expert witnesses. Dr. Morris Pulliam, a neurosurgeon,

testified in his deposition that if Mr. Smith's brain abscess had been

diagnosed at least 72 hours before his death, he probably could have

been saved. Dr. Pulliam, however, specifically disclaimed any knowledge of or opinion about the applicable standard of care required

under the circumstances and whether anyone had breached that standard. Joint Appendix at 245. A nursing expert, Robert Johnson, R.N.,

identified several aspects of the nursing care provided to Mr. Smith

which he alleged breached the standard of care required. Nowhere in

his testimony, however, did Nurse Johnson state that any of these

alleged breaches were the proximate cause of Mr. Smith's death.

The defendants moved for summary judgment at the close of discovery, which the district court granted. In its memorandum opinion,

the court stated that:

[T]he plaintiff has failed to present evidence sufficient to

submit her medical malpractice claim to a jury, much less

her claim that any of the defendants were deliberately indifferent to Mr. Smith's serious medical need in violation of

the Fourteenth Amendment to the Constitution. See, e.g.,

Browning v. Snead, 886 F. Supp. 547, 555 (S.D. W. Va.

1995); see also Johns Hopkins Hospital v. Genda , 255 Md.

616, 622-23, 258 A.2d 595, 599 (1969); Karl v. Davis, 100

Md. App. 42, 51, 639 A.2d 214, 219, cert. denied , 366 Md.

244, 647 A.2d 444 (1994). The plaintiff also has failed to

show any personal involvement by Mr. Saxton in Mr.

Smith's medical care, or any policy, custom, or practice on

the part of the County that violated Mr. Smith's constitutional rights. See Monell v. Department of Social Servs. of

New York, 436 U.S. 658, 690-91 (1978); Zepp v. Rehrman,

79 F.3d 381, 385 (4th Cir. 1996); Greensboro Professional

Fire Fighters Ass'n v. City of Greensboro, 64 F.3d 962, 964

(4th Cir. 1995).

Finding no error, we affirm on the reasoning of the district court.

AFFIRMED

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