* Pursuant to Local Rule 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this opinion should not be published and is not precedent except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 Local Rule 47.5.4.

UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 95-60145

Summary Calendar

LUTHER J. HARVEY,

Plaintiff-Appellant,

VERSUS

RICK GASTON, Captain and

JOE PRICE, Sheriff,

Defendants-Appellees.

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

LUTHER J. HARVEY,

Plaintiff-Appellant,

VERSUS

JOE PRICE, Sheriff,

Defendant-Appellee.

Appeal from the United States District Court

For the Southern District of Mississippi

(93-CV-502)

February 26, 1996

Before DAVIS, BARKSDALE and DeMOSS, Circuit Judges.

PER CURIAM:*
2

Background

Luther Harvey, a former inmate of the Harrison County jail,

filed civil rights suits against Rick Gaston, the supervising

captain at the jail, and Joe Price, the sheriff of Harrison County.

Harvey, at the time a pretrial detainee, alleged that he was denied

mental and medical treatment for the ten months that he was housed

in the jail. He alleged that, despite a June 19, 1992 court order

that he be transferred to the Mississippi State Hospital for a

mental evaluation, he did not have a mental evaluation until April

7, 1993. He further alleged that he was improperly housed with

maximum security inmates.

The defendants filed a motion to dismiss, or in the

alternative, for summary judgment. They outlined medical services

provided to Harvey by the jail, including optical and dental

treatments, and submitted exhibits supporting the summary of

treatment. Regarding Harvey's delayed mental evaluation, the

defendants averred that, upon inquiry, they were advised by the

state mental hospital that 20 to 25 people were on a waiting list

for evaluation prior to Harvey. The defendants submitted Gaston's

affidavit attesting to such. Regarding Harvey's maximum security

classification, the defendants averred that Harvey was arrested and

detained upon a charge that he attempted to stab his ex-wife to

death at the hospital where she worked and that Harvey was

belligerent at the time of booking. The defendants submitted the

jail's general housing orders indicating that Harvey was housed in

accordance with the orders.
 

1 Harvey also alleges that he was deprived of a "change to

state his claim" at the pretrial settlement. Issues raised for the

first time on appeal were not reviewable by this Court unless they

involve purely legal questions and failure to consider them would

result in manifest injustice. Varnado v. Lynaugh, 920 F.2d 320,

321 (5th Cir. 1991). Because Harvey's assertion is not purely

legal, this Court need not consider it.

3

The district court granted the defendants' motion for summary

judgment. The court concluded that Harvey's claims against Sheriff

Price failed because Harvey failed to allege personal involvement

by Price. The court rejected Harvey's remaining claims on their

merits. Harvey timely appealed.

Opinion

Although Harvey's appellate brief is difficult to decipher, he

apparently argues that he should have been given a mental

evaluation by a local psychiatrist, citing Partridge v. Two Unknown

Police Officers of Houston, 791 F.2d 1182, 1187 (5th Cir. 1986),

which held that the failure to treat a serious psychological or

psychiatric condition could result in a viable § 1983 claim. He

argues that he was "indeed abused mentally [during] his

incarceration at the Harrison County Jail concerning his Vet[e]rans

mental illness." He also suggests that he was belligerent at

booking because of his mental illness.1

Construing Harvey's brief liberally, we will assume that

Harvey challenges the district court's grant of summary judgment

regarding his delayed mental evaluation and his housing

classification. Harvey does not re-argue on appeal his claim that

he was completely denied any medical care during his tenure at the

Harrison County jail, nor does he challenge the district court's
4

determination that his claims against Sheriff Price should be

dismissed based on a lack of personal involvement. These claims

are thus deemed abandoned. See Yohey v. Collins, 985 F.2d 222,

224-25 (5th Cir. 1993).

This Court reviews the grant of summary judgment de novo,

using the same standard applied by the district court. Matagorda

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

CIVIL PROCEDURE 56 mandates the entry of summary judgment if the

pleadings and other filings show that there is no genuine issue as

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

judgment as a matter of law. Little v. Liquid Air Corp., 37 F.3d

1069, 1075 (5th Cir. 1994) (en banc). If the movant meets its

burden, the nonmovant must go beyond the pleadings and show that

there is a genuine issue for trial. Id.

In Hare v. City of Corinth, No. 93-7193, 1996 WL 34766, ____

F.3d ____ (5th Cir. Jan. 26, 1996), this Court sitting en banc

clearly held that the duties and obligations owed to a pretrial

detainee relative to medical care are the same as those owed to

convicted inmates, i.e. the state must provide "basic human needs,

including medical care and protection from harm, during their

confinement" but that the test of a state jail official's liability

is that such official must have had "subjective knowledge of a

substantial risk of serious harm" and then "responded with

deliberate indifference to that risk". Id. at *18.

Applying these standards in this case, we find that Harvey

provided no evidence to controvert the defendants' showing that the
opin\95-60145.opn

5

delay in his mental evaluation was related to the waiting list at

the state mental facility. Regarding his assertion that he should

have seen a local psychiatrist, Harvey has not shown that his

mental condition was such as to produce "a substantial risk of

serious harm." Further, the record contains no indication that an

immediate mental evaluation was necessary to protect Harvey's

health. Compare Partridge, 791 F.2d at 1187 (failure to take steps

to save a known suicidal detainee from injuring himself may

constitute a due process violation). Finally, as noted by the

district court, Harvey did ultimately receive an extensive

psychological evaluation by the state mental facility; and there is

no basis, therefore, upon which a finding of deliberate

indifference could be made.

Regarding Harvey's complaint about his housing assignment,

conditions of confinement amount to a due process violation only if

they constitute punishment of the detainee. Valencia v. Wiggins,

981 F.2d 1440, 1445 (5th Cir.), cert. denied, 113 S. Ct. 2998

(1993). Deciding whether a condition of confinement amounts to

punishment turns on whether the disability is imposed for the

purpose of punishment or whether it is but an incident of some

other legitimate governmental purpose. See Harris v. Angelina

County, 31 F.3d 331, 334 (5th Cir. 1994). Even assuming that

Harvey was given an improper classification based on his

belligerence, the classification also was based on the nature of

the charges against Harvey, as reflected in the jail's general

housing orders. Harvey makes no argument challenging his
 

2 See Spears v. McCotter, 766 F.2d 179, 181 (5th Cir. 1985).

opin\95-60145.opn

6

classification based on such. No due process violation has

occurred. The district court did not err by granting the

defendants' motion for summary judgment. See Little, 37 F.3d at

1075.

Harvey also argues that he was deprived of his "due process

right to a [S]pears hearing." He argues that because he did not

have such a hearing, the district court's order granting summary

judgment was not a final decision. He also argues that the court

erred by cancelling the magistrate judge's order issuing a writ of

habeas corpus ad testificandum.

A Spears2 hearing is in the nature of a motion for a more

definite statement. Wilson v. Barrientos, 926 F.2d 480, 482 (5th

Cir. 1991). Given that Harvey had an opportunity to respond to the

defendants' motion for summary judgment, a Spears hearing was

neither required nor necessary. Accordingly, the order for the

writ of habeas corpus ad testificandum was properly rescinded.

AFFIRMED.