Summary Calendar JOSEPH MONTERO-MELENDEZ v. Fredrick Menifee

* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 06-20931
Summary Calendar
JOSEPH MONTERO-MELENDEZ
Plaintiff-Appellant
v.
FREDRICK MENIFEE; EDWARD PEREZ; HARLEY LAPPIN; DOES 1
THROUGH 20; UNITED STATES OF AMERICA
Defendants-Appellees
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:04-CV-4587
Before REAVLEY, SMITH, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Joseph Montero-Melendez, federal prisoner # 37252-054, proceeding pro
se and in forma pauperis, appeals a summary judgment against his action under
Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S.
388 (1971), and the Federal Tort Claims Act. Montero-Melendez maintains the
defendants were deliberately indifferent to his health and safety because they
United States Court of Appeals
Fifth Circuit
F I L E D
October 15, 2007
Charles R. Fulbruge III
Clerk

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failed to maintain sanitary prison conditions during his pretrial detention at the
Federal Correctional Institution (FCI) in Otisville, New York, and, as a result,
he contracted a Heliobacter pylori (H. pylori) bacterial infection.
A summary judgment is reviewed de novo. Hart v. Hairston, 343 F.3d 762,
764 (5th Cir. 2003); see FED. R. CIV. P. 56. Because Montero-Melendez’s
assertions are based on acts or omissions related to his health and safety, they
are properly characterized as episodic acts or omissions. See Olabisiomotosho
v. City of Houston, 185 F.3d 521, 526 (5th Cir. 1999); Flores v. County of
Hardeman, Tex., 124 F.3d 736, 738 (5th Cir. 1997). If a pretrial detainee bases
his claim upon a prison official’s “episodic acts or omissions”, the standard of
subjective deliberate indifference enunciated in Farmer v. Brennan, 511 U.S. 825
(1994), is the measure of culpability. Hare v. City of Corinth, Miss., 74 F.3d 633,
643 (5th Cir. 1996) (en banc). For an official to act with deliberate indifference,
he “must both be aware of facts from which the inference could be drawn that a
substantial risk of serious harm exists, and he must also draw the inference”.
Farmer, 511 U.S. at 837.
Montero-Melendez has not shown the district court erred in granting
summary judgment against the deliberate-indifference claim. Montero-
Melendez produced no competent summary-judgment evidence establishing his
infection was caused by unsanitary prison conditions at FCI Otisville.
Furthermore, he produced no probative evidence showing the defendants were:
aware the prison conditions at FCI Otisville were conducive to the spread of H.
pylori; and deliberately indifferent to that risk. Montero-Melendez’s allegations
maintaining the defendants were, or should have been, aware of the unsanitary
conditions at FCI Otisville and of the existence of H. pylori bacteria do not
equate to knowledge of a condition posing a substantial risk of harm; moreover,
the allegations fail to provide the requisite summary-judgment evidence to
establish a genuine issue of material fact on whether the defendants actually

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drew the inference that inmates faced a risk of harm and deliberately ignored
it. See id. at 837.
AFFIRMED.

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