McCarty v. Zapata County, et al

* 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this opinion should not be published and is not precedent except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
F I L E D
April 20, 2007
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 05-41718
Summary Calendar
ROGER STEVEN MCCARTY,
Plaintiff-Appellant,
versus
ZAPATA COUNTY; SIGIFREDO GONZALEZ, JR., Sheriff;
SERGEANT ROMONE MONTES; SERGEANT JUAN VALADEZ;
ARTURO GARZA GONGORA, DR.; JUDGE Richard Domingues,
Licensed Vocational Nurse; JUDGE MANUEL FLORES,
Defendants-Appellees.
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Appeal from the United States District Court
for the Southern District of Texas
(5:03-CV-95)
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Before SMITH, WIENER, and OWEN, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant Roger Steven McCarty, now Texas prisoner
# 1106362, appeals the district court’s grant of summary judgment
in favor of the defendants and the court’s dismissal of his civil
rights complaint. McCarty alleged the denial of adequate medical
treatment for his Hepatitis C and adequate psychiatric care for his
severe depression during his incarceration at the Zapata County
Jail. He argues that the district court erred in granting the

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defendants’ motions for summary judgment, as there existed factual
disputes as to several issues regarding his medical care. He
asserts that the disputed factual issues are material, as they show
“a completely needless denial of medical treatment for his serious
medical needs, for which could have easily resulted into his death
from disease complications, such as fulminant hepatitis, or
completed suicide.”
Summary judgment is proper if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with
any affidavits filed in support of the motion, 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. FED. R. CIV. P. 56(c).
We review the district court’s grant of summary judgment de novo,
examining the evidence in the light most favorable to the
nonmovant. Gibbs v. Grimmette, 254 F.3d 545, 547 (5th Cir. 2001).
A factual dispute will preclude a grant of summary judgment if the
evidence is such that a reasonable jury could return a verdict for
the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). The court may not weigh the evidence or make
credibility determinations. Id. Conclusional allegations,
speculation, improbable inferences, or a mere scintilla of
evidence, however, are insufficient to defeat a summary judgment
motion. See Michaels v. Avitech, Inc., 202 F.3d 746, 754-55 (5th
Cir. 2000).

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McCarty was a both a pretrial detainee and a convicted
prisoner during the time he was housed at the Zapata County Jail.
“Pretrial detainees and convicted prisoners . . . look to different
constitutional provisions for their respective rights to basic
needs such as medical care and safety.” Hare v. City of Corinth,
74 F.3d 633, 639 (5th Cir. 1996) (en banc). There is no
significant distinction, however, between pretrial detainees and
convicted inmates when the denial of medical care is at issue.
Gibbs, 254 F.3d at 548. When the alleged unconstitutional conduct
involves an episodic act or omission, as in this case, the question
is whether the state official acted with “deliberate indifference”
to the inmate’s constitutional rights, regardless of whether the
individual is a pretrial detainee or state inmate. Id. To make a
showing of deliberate indifference, the inmate must submit evidence
that prison officials refused to treat him, ignored his complaints,
intentionally treated him incorrectly, or engaged in any similar
conduct that would clearly evince a wanton disregard for any
serious medical needs. Domino v. Texas Dep’t of Criminal Justice,
239 F.3d 752, 756 (5th Cir. 2001). Further, the plaintiff must
establish resulting injuries. Mace v. City of Palestine, 333 F.3d
621, 625 (5th Cir. 2003).
McCarty introduced no competent summary-judgment evidence
establishing that the defendants refused to treat him for his
Hepatitis C. His allegations established, at best, that the
defendants failed to follow the course of treatment that was

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recommended by the physician who saw him in the hospital. This is
insufficient to establish deliberate indifference. See Domino, 239
F.3d at 756. Further, McCarty failed to establish any injury
resulting from the alleged denial of treatment for his Hepatitis C.
See Mace, 333 F.3d at 625.
The refusal to treat a prisoner’s diagnosed psychiatric
illness may amount to deliberate indifference under particular
circumstances. Woodall v. Foti, 648 F.2d 268, 272 (5th Cir. Unit
A 1981). McCarty has submitted no competent summary-judgment
evidence establishing that the defendants failed to provide him
with medically necessary psychiatric treatment. McCarty’s
assertion that an attempted suicide could easily have been
“completed” is an insufficient allegation of harm to warrant
relief. See Domino, 239 F.3d at 756.
McCarty also contends that the district court abused its
discretion in denying his motion for a default judgment against
Defendant Richard Dominguez. A party is not entitled to a default
judgment as a matter of right, even where the defendant is
technically in default.” Lewis v. Lynn, 236 F.3d 766, 767 (5th
Cir. 2001). When a defending party establishes that the plaintiff
has no cause of action, such defense “generally inures also to the
benefit of a defaulting defendant.” Id. at 768. The district
court did not abuse its discretion in denying McCarty’s motion for
a default judgment. Id.
AFFIRMED.

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