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that this opinion should not be published and is not precedent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

United States Court of Appeals

Fifth Circuit

FILED

January 23, 2004

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 03-60188

Summary Calendar

 

PHILLIP MARCUS CARTER,

Plaintiff-Appellant,

versus

LOWNDES COUNTY; ED PRESCOTT, Sheriff of Lowndes County,

in his individual and official capacity; RON MUSGROVE,

Superintendent, Lowndes County Adult Detention Center;

JESSIE BROOKS, Lieutenant, Lowndes County Adult Detention

Center; JOHNNY BLEVINS, Sergeant; MARTINEZ, Nurse,

Defendants-Appellees.

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

Appeal from the United States District Court

for the Northern District of Mississippi

USDC No. 1:00-CV-495 

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

Before HIGGINBOTHAM, DAVIS and PRADO, Circuit Judges.

PER CURIAM:*

Phillip Carter, Mississippi prisoner # 04491, appeals from

the district court’s dismissal with prejudice of his 42 U.S.C. 

§ 1983 civil rights complaint and entry of judgment for the

defendants following an evidentiary hearing. Carter’s complaint

against the defendants (collectively, Lowndes County) challenged
No. 03-60188

-2-

the conditions of his confinement, his medical care, and access

to religious services and to the courts, all while he was a

pretrial detainee. Carter has not briefed his argument that

Lowndes County failed to train its employees in accordance with

the Rehabilitation Act of 1974. Accordingly, he has waived this

issue on appeal. See Yohey v. Collins, 985 F.2d 222, 224-25

(5th Cir. 1993). 

An evidentiary hearing consistent with Flowers v. Phelps,

956 F.2d 488 (5th Cir.), vacated and superceded on other

grounds on reh’g, 964 F.2d 400 (5th Cir. 1992) and 28 U.S.C. 

§ 636(b)(1)(B), as in this case, “amounts to a bench trial

replete with credibility determinations and findings of fact.” 

McAfee v. Martin, 63 F.3d 436, 437 (5th Cir. 1995). This court

reviews factual findings under a clearly erroneous standard and

legal conclusions de novo. FED. R. CIV. P. 52(a); Newton v.

Black, 133 F.3d 301, 305 (5th Cir. 1998).

Conditions of confinement

Carter argues that, as a result of his infection with

HIV, Lowndes County placed him in solitary confinement in an

unsanitary cell, denied him “yard time” and shower privileges,

and served his meals on styrofoam trays. To prevail on a

42 U.S.C. § 1983 claim regarding the conditions of his

confinement, Carter must establish that the conditions which

allegedly caused an injury amounted to punishment and were not
No. 03-60188

-3-

incident to some other legitimate governmental purpose. 

See Bell v. Wolfish, 441 U.S. 520, 535, 538 (1979).

The record reflects that Lowndes County’s policy of

segregating inmates with contagious diseases served a two-fold

purpose of protecting the general population and protecting

infected inmates from retaliation. This policy, as well as

the method of food service to inmates infected with contagious

diseases, serves a legitimate penological interest. See Moore v.

Mabus, 976 F.2d 268, 271 (5th Cir. 1992). The district court was

entitled to rely upon Lowndes County officials’ testimony that

Carter had been offered cleaning supplies to clean his cell and

had been given “yard time” and shower privileges. See McAfee,

63 F.3d at 437. The district court did not err in dismissing

this claim. 

Medical care

Carter argues that Lowndes County staff ignored his requests

to administer his medications at specific times. To establish

unconstitutional conduct related to medical care, Carter must

show that a state official acted with deliberate indifference

to a substantial risk of serious medical harm and that injuries

resulted. Wagner v. Bay City, Tex., 227 F.3d 316, 324 (5th Cir.

2000). 

At the evidentiary hearing, Carter did not deny that he

had received his medications. Rather, he disagreed with the

administration schedule. He acknowledged that he did not believe
No. 03-60188

-4-

the misadministration was intentional, and he further conceded

that his viral load levels had returned to an undetectable

state. Carter’s mere disagreement with his medical treatment is

insufficient to establish deliberate indifference. See Williams

v. Treen, 671 F.2d 892, 901 (5th Cir. 1982). Accordingly, the

district court did not err in dismissing this claim.

Free exercise of religion

Carter contends that, as a result of his infection with HIV,

Lowndes County prohibited him from attending religious services

with the general population. The standard for evaluating the

validity of prison rules related to the exercise of religion

is whether the rules are “reasonably related to legitimate

penological interests.” See Turner v. Safley, 482 U.S. 78, 89

(1987); Hicks v. Garner, 69 F.3d 22, 25 (5th Cir. 1995). 

Lowndes County’s segregation policy for inmates with

contagious diseases served a legitimate penological interest. 

See Moore, 976 F.2d at 271. Moreover, the record reflects that,

upon a segregated inmate’s request, a minister will visit the

individual cell. The district court did not err in dismissing

this claim. 

Free access to the courts

Carter argues that he was denied writing materials and

access to the law library, which prevented him from filing a 
No. 03-60188

-5-

motion to dismiss pending charges. To prevail on his access-tothe-courts claim, Carter must show an actual injury. See Lewis

v. Casey, 518 U.S. 343, 349-51 (1996).

Without providing any detail, Carter contends in a summary

fashion that his post-conviction efforts have been prejudiced. 

Carter has failed to explain, either at the evidentiary hearing

or on appeal, how his position as a litigant was adversely

affected. See Lewis, 518 U.S. at 350-53. Accordingly,

the district court did not err in dismissing this claim. 

The judgment of the district court is AFFIRMED.