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that this opinion should not be published and is not precedent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

** Sheriff Thornton died during the pendency of these

proceedings in the district court. The case now continues

against the present Sheriff, Mark Shumate, in his official

capacity. See Fed. R. Civ. P. 25(d).

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 99-31319

(Summary Calendar)

 

WILLIAM HENRY,

Plaintiff-Appellant,

versus

MARK SHUMATE, individually and in his official capacity as

acting Sheriff of East Carroll Parish,

Defendant-Appellee.

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

Appeal from the United States District Court

for the Western District of Louisiana

(97-CV-1824)

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

May 10, 2000

Before POLITZ, HIGGINBOTHAM, and WIENER, Circuit Judges.

PER CURIAM:*

Plaintiff-Appellant William Henry appeals the magistrate

judge’s grant of summary judgment for the defendant in his 42

U.S.C. § 1983 action against J.O. Thornton, Sheriff of East Carroll

Parish,** in his individual and official capacity, alleging a denial

of dental care amounting to deliberate indifference.
2

Henry argues that the district court erred in granting summary

judgment because Nurse Dukes’s deposition testimony contradicted

her affidavit and demonstrated that she is not competent to make

the representations that she made. He contends that an issue of

fact exists as to whether the defendant had a policy for addressing

further inmate care that had been ordered by a treating physician,

and, if such a policy was in place, what the policy provided.

Nurse Dukes testified that the policy of providing follow-up

care to inmates was not a written Sheriff’s Office policy, and that

no one had specifically told her that this was the policy; rather

it is something that she does as part of her practices as a nurse.

Specifically, her procedure is to review the medical records of the

inmate returning from Conway Hospital to determine whether followup care is needed and to see to it that, if needed, it is provided.

This is the evidence of the policy in place at the East

Carroll Detention Center concerning follow-up care, and it

contradicts neither the written policy nor Nurse Dukes’s affidavit.

It merely supplements it. Nurse Dukes’s affidavit and testimony

are consistent, and both clearly show that she has personal

knowledge sufficient to demonstrate her competency as a witness to

establish the policy of the Center concerning the provision of

follow-up medical care. There is no factual dispute concerning the

existence of the policy, and Henry did not allege a custom or

practice of failing to comply with the policy. He alleges but a

single negligent act, and that is not enough from which to infer a

policy. Thompkins v. Belt, 828 F.2d 298, 303-04 (5th Cir. 1987).
3

The essence of Henry’s argument is that the Sheriff should be

liable to him under § 1983 for failure to adopt a formal written

policy explicitly stating that a physician’s recommendation of

follow-up care for an inmate patient must be followed in all

instances. There is no such legal requirement.

Henry argues that the magistrate judge abused his discretion

in denying as untimely Henry’s motion to amend. Henry’s argument

ignores the magistrate judge’s additional reason as stated in his

order denying the motion to reconsider. The magistrate judge noted

that the proposed amendment sought to assert only a supplemental

state law claim which would be futile because he would decline to

exercise jurisdiction over that claim if the motion for summary

judgment were to be granted.

Henry does not argue that the magistrate judge abused his

discretion on this alternate ground, or that, if the amendment had

been allowed, the magistrate judge could not have dismissed the

state law claim when summary judgment was granted on the federal

claim.

AFFIRMED.