IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-60024

THOMAS EDWIN HORN,

Plaintiff-Appellant

v.

THOMAS E. VAUGHAN, also known as Tommy Vaughan, Yazoo County

Sheriff; SHERRY VAUGHAN; YAZOO COUNTY, MISSISSIPPI, 

Defendants-Appellees 

Appeal from the United States District Court

for the Southern District of Mississippi

USDC No. 5:09-CV-119

Before JONES, Chief Judge, and PRADO and SOUTHWICK, Circuit Judges.

PER CURIAM:*

Thomas Edwin Horn, pro se and in forma pauperis, brought a § 1983 suit

against Sheriff Tommy Vaughan, Sherry Vaughan, Chad Blackstock, Yazoo

County, and Yazoo Medical Clinic for violation of his constitutional rights by

denying him HIV medication for several months. The trial court dismissed two

of the defendants and entered summary judgment in favor of the remaining

three defendants. We AFFIRM.

United States Court of Appeals

Fifth Circuit

F I L E D

April 9, 2012

Lyle W. Cayce

Clerk

 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.

Case: 11-60024 Document: 00511815135 Page: 1 Date Filed: 04/09/2012
No. 11-60024

BACKGROUND

Horn, 51, was a pre-trial detainee at the Yazoo County Detention Center

from August 20, 2007 through August 21, 2008, having been charged with “Rape;

Carnal Knowledge of a Child Under 14.” Horn, who is HIV positive, received his

HIV medication while incarcerated without incident through January 2008. In

January 2008, newly elected Sheriff Thomas Vaughan took office and hired a

new jail administrator, Deputy Sheriff Chad Blackstock. Horn ran out of

medication on February 1st and informed Blackstock. Horn was taken to a

doctor on February 21, 2008 and he was prescribed a 21-day supply of Atripla,

which was exhausted in late March 2008. Horn did not receive another

prescription for HIV medication until August 2008. 

One reason for the delay was that the jail changed medical contractors 

sometime between February and April 2008, and the Yazoo Medical Clinic

became the new medical care contractor for the jail. Blackstock informed Horn

of the change and told him that a “nurse” from the clinic would interview the

patients. The “nurse” turned to be out Sherry Vaughan, the Sheriff’s wife, who

worked as a clerk at the clinic. Ms. Vaughan conducted an initial interview with

Horn in mid-April 2008, but Horn received no medical care for his HIV until

August 2008, despite his numerous communications to Blackstock about his

condition. 

Horn talked to Sheriff Vaughan on only one occasion while he was a

prisoner at the jail. Horn told the Sheriff that he needed his medication and the

Sheriff told him either that the “nurse” would meet with him and/or to put his

name on the sick call list. Sherry Vaughan, who had previously interviewed

Horn, did not see Horn again after the conversation. Horn accepted a plea

bargain and was transferred to the custody of the state after his August doctor

visit but before he received medication. At the state penitentiary he was

informed that he had developed an immunity to Atripla and was prescribed a

2

Case: 11-60024 Document: 00511815135 Page: 2 Date Filed: 04/09/2012
No. 11-60024

second HIV treatment, which, he alleges, caused him to bleed internally. A third

treatment was administered, which Horn is tolerating well; his HIV is again

“undetectable.” 

In response to Horn’s § 1983 action, the trial court ordered the defendants

to produce, among other things, a copy of Horn’s medical records. Horn claims

that the medical records are incomplete because eleven pages dating from

October 2008 through May 2009 are missing. Nevertheless, the court granted

summary judgment to Sherry Vaughan because she was only a clerk who lacked

the medical expertise or authority to make treatment or medication decisions.

The court also granted summary judgment to Sheriff Vaughan and Yazoo

County, finding that Horn’s constitutional rights were not violated because he

suffered no substantial harm. 

Horn has appealed these summary judgments but notthe court’s dismissal

of Blackstock and Yazoo Medical Clinic. He asserts that issues of material fact

render summary judgment inappropriate and that the district court erred in

entering summary judgment when discovery was incomplete. He also charges

that the trial court abused its discretion by not appointing him counsel.

DISCUSSION

1. This court reviews the grant of a motion for summary judgment de

novo. Xtreme Lashes, LLC v. Xtended Beauty, Inc., 576 F.3d 221, 226 (5th Cir.

2009). Summary judgment is proper if the record discloses “that there is no

genuine dispute as to any material fact and the movant is entitled to a judgment

as a matter of law.” Fed. R. Civ. P. 56(a). As an initial matter, Horn has waived

any appeal of the grant of summary judgment to Sherry Vaughan. Issues that

are not briefed on appeal are waived. Yohey v. Collins, 985 F.2d 222, 224-25 (5th

Cir. 1993). Even pro se appellants must brief arguments to preserve them. Id.

at 25. The trial court granted summary judgment to Sherry Vaughan in a

separate order and for different reasons than the other defendants. Horn,

3

Case: 11-60024 Document: 00511815135 Page: 3 Date Filed: 04/09/2012
No. 11-60024

however, neither mentions Sherry Vaughan by name nor challenges in his briefs

any of the specific reasons the trial court granted summary judgement for her. 

We affirm summary judgment for Sheriff Vaughan and Yazoo County,

though for different reasons than those given by the trial court. See LLEH, Inc.

v. Wichita Cnty., Tex., 289 F.3d 358, 364 (5th Cir. 2002) (“[This court] may affirm

for reasons other than those relied upon by the district court.”). As a matter of

law, Sheriff Vaughan was not deliberately indifferent and the county is

consequently not liable for failing to train or supervise the Sheriff.

Pretrial detainees have constitutional “rights to basic needs such as

medical care and safety” that arise under the Fourteenth Amendment. Hare v.

City of Corinth, 74 F.3d 633, 639 (5th Cir. 1996). “The episodic act or omission

of a state jail official does not violate a pretrial detainee’s due process right to

medical care . . . unless the detainee demonstrates that the official acted or failed

to act with deliberate indifference to the detainee’s needs.” Id. at 637-38. 

Moreover, a delay in medical care must cause “substantial harm” to be a

constitutional violation. Easter v. Powell, 467 F.3d 459, 464 (5th Cir. 2006)

(quoting Mendoza v. Lynaugh, 989 F.2d 191, 193 (5th Cir. 1993)). The district

court held that there was an issue of material fact whether Sheriff Vaughan was

deliberately indifferent, but that Horn had not suffered substantial injury.

We disagree that there was a question of material fact whether Sheriff

Vaughan was deliberately indifferent. “Deliberate indifference is an extremely

high standard to meet.” Domino v. Tex. Dep’t of Criminal Justice, 239 F.3d 752,

756 (5th Cir. 2001). To be “deliberately indifferent,” the sheriff had to be

(1) aware of facts from which an inference of an excessive risk to Horn’s health

or safety could be drawn and (2) the sheriff actually had to draw an inference

that such potential for harm existed. Bradley v. Puckett, 157 F.3d 1022, 1025

(5th Cir. 1998). 

4

Case: 11-60024 Document: 00511815135 Page: 4 Date Filed: 04/09/2012
No. 11-60024

Throughout Horn’s stay at the jail, he spoke with the Sheriff on only one

occasion about his medication. Requests for medical care were handled by the

jail administrator, Blackstock. The evidence does not indicate that Sheriff

Vaughan was aware that Blackstock was ignoring or neglecting Horn’s requests

for medication. Moreover, a representative from Yazoo Medical Clinic did visit

Horn. Sheriff Vaughan was in no position to question the clinic’s medical

treatment of Horn. All the sheriff can do is provide the patient with access to

medical care; there is no claim that the Sheriff cancelled any appointments or

prescriptions. Because the record contains no evidence supporting the Sheriff’s

deliberate indifference, summary judgment was proper on that ground alone,

and we need not address whether Horn suffered substantial harm. Because the

Sheriff did not violate Horn’s constitutional rights, even if failure to train a

sheriff can afford a basis of § 1983 liability, Yazoo County could not be liable for

failing to train or supervise the Sheriff. Finally, Horn provides us no reason to

infer that had his medical records been fully disclosed, their information would

support his claims against the Sheriff or the county.

2. A trial judge’s decision not to appoint counsel for a pro se litigant will

only be overturned for a clear abuse of discretion. Cupit v. Jones, 835 F.2d 82,

86 (5th Cir. 1987). Trial judges are only required to appoint counsel in § 1983

cases if there are “exceptional circumstances.” Id. The magistrate judge

declined to appoint counsel because Horn’s pleadings were well presented, the

case presented no novel points of law, the claims were straightforward, Horn

proved capable of presenting his claims, and the trial court was able to assist in

discovery and clarifying the pleadings at the Spears hearing. 

This court’s decision in Moore v. Mabus, 976 F.2d 268 (5th Cir. 1992), is

distinguishable. The prisoners’ HIV discrimination claim in Moore required

extensive resources to investigate because systemic prison policies regarding

HIV management are very complex. Id. at 272. Moore does not mean that

5

Case: 11-60024 Document: 00511815135 Page: 5 Date Filed: 04/09/2012
No. 11-60024

counsel must be appointed in every case where HIV is involved. The trial court

did not abuse its discretion in denying counsel to Horn. 

AFFIRMED.

6

Case: 11-60024 Document: 00511815135 Page: 6 Date Filed: 04/09/2012