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Rodger B. Selvey v. Edward F. Tripp, 95-3041 (1996)

Court: Court of Appeals for the Eighth Circuit Number: 95-3041 Visitors: 14
Filed: Apr. 24, 1996
Latest Update: Mar. 02, 2020
Summary: _ No. 95-3041 _ Rodger B. Selvey, * * Appellant, * * v. * * City of St. Louis, * * Defendant, * * Edward F. Tripp; Julian Boyd; * Alice Pollard; Dave Kovak; * Samuel Smith; Unknown Morrow, * Dr.; Unknown Hervey; Unknown * Townsend; Unknown Udo, * * Appellees. * _ Appeals from the United States No. 95-3045 District Court for the _ Eastern District of Missouri Reginald S. Carr, * [UNPUBLISHED] * Appellant, * * v. * * City of St. Louis, * * Defendant, * * Edward F. Tripp; Julian Boyd; * Alice Polla
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     ___________

     No. 95-3041
     ___________

Rodger B. Selvey,                     *
                                      *
           Appellant,                 *
                                      *
     v.                               *
                                      *
City of St. Louis,                    *
                                      *
           Defendant,                 *
                                      *
Edward F. Tripp; Julian Boyd;         *
Alice Pollard; Dave Kovak;            *
Samuel Smith; Unknown Morrow,         *
Dr.; Unknown Hervey; Unknown          *
Townsend; Unknown Udo,                *
                                      *
           Appellees.                 *

     ___________
                                          Appeals from the United States
     No. 95-3045                          District Court for the
     ___________                          Eastern District of Missouri

Reginald S. Carr,                  *          [UNPUBLISHED]
                                   *
           Appellant,              *
                                   *
      v.                           *
                                   *
City of St. Louis,                 *
                                   *
           Defendant,              *
                                   *
Edward F. Tripp; Julian Boyd;      *
Alice Pollard; Dave Kovak;         *
Samuel Smith; Unknown Morrow,      *
Dr.; Unknown Hervey; Unknown       *
Townsend; Unknown Udo,             *
                                   *
           Appellees.              *
                              ___________

                     Submitted:   April 5, 1996

                         Filed:   April 24, 1996
                                  ___________
                               ____________

Before McMILLIAN, WOLLMAN and MURPHY, Circuit Judges.
                               ___________


PER CURIAM.


     Rodger B. Selvey and Reginald S. Carr appeal from a final order of
the District Court1 for the Eastern District of Missouri granting defendant
St. Louis city jail officials summary judgment in these consolidated 42
U.S.C. § 1983 actions.   For the reasons discussed below, we affirm.


     In his amended complaint, Selvey alleged that two administrators
failed to respond to his resident requests complaining about his inability
to see a doctor and the medical care provided by Nurse Rosalyn Harvey; that
a social services supervisor failed to ensure that detainee Ricky Bailey
was tested for tuberculosis before placing him in Selvey's cell tier; that
Selvey had to wait once for forty-two days and once for three months to see
a doctor; and that medical personnel failed to take reasonable steps to
protect Selvey from contracting tuberculosis by failing to adequately test
and screen Bailey for tuberculosis.    Carr alleged that defendants knowingly
exposed him to tuberculosis when they placed an inmate (Bailey), infected
with active tuberculosis in Carr's cell tier, and failed to provide
adequate follow-up care and treatment.


     Defendants moved for summary judgment in both cases.         Defendants
provided copies of Selvey's resident requests and relevant medical records,
and argued the requests Selvey sent to the administrators were insufficient
to put them on notice of any serious medical need.           Medical records
indicated Harvey responded




     1
      The Honorable Jean C. Hamilton, Chief Judge, United States
District Court for the Eastern District of Missouri.

                                      -2-
once within one day and once within thirteen days to Selvey's request for
medical treatment, but that neither medical requests notified her of a
serious medical need.     Defendants also provided evidence of the jail's
screening policy for tuberculosis and that such screening was conducted
regularly, in accordance with the policy.      They provided evidence that
Bailey's active tuberculosis was unknown at the time of his cell assignment
and that, when it was discovered by the city health department, all jail
residents who had had contact with Bailey were tested and treated.


     The district court granted defendants summary judgment in both cases,
concluding that Selvey failed to support the subjective component of the
deliberate indifference test in his failure-to-screen claim against medical
personnel because there was sufficient evidence that regular screening was
conducted and the failure to detect Bailey's tuberculosis was, at most,
evidence of negligence.    In addition, the district court concluded the
claims that defendants deliberately denied or delayed medical treatment
were not supported by the evidence, and any delay in treatment amounted
merely to negligence and did not create an acute or escalating situation.
The district court concluded that Carr failed to allege any personal
involvement by any defendant named in the complaint.
     This court reviews a grant of summary judgment de novo, applying the
same standard as the district court.      Earnest v. Courtney, 
64 F.3d 365
,
366-67 (8th Cir. 1995) (per curiam).


         We conclude the district court's grant of summary judgment was
appropriate because Selvey and Carr failed to make a sufficient showing
that defendants acted with deliberate indifference to their serious medical
needs.   See Estelle v. Gamble, 
429 U.S. 97
, 106 (1976); Smith v. Jenkins,
919 F.2d 90
, 92 (8th Cir. 1990); see also Davis v. Hall, 
992 F.2d 151
, 153
(8th Cir. 1993) (per curiam) (deliberate indifference standard applies to
pretrial detainees).




                                    -3-
     First, Selvey and Carr did not contradict defendants' evidence that
the jail had a system for screening for tuberculosis, that defendants were
unaware Bailey had active tuberculosis until so informed by the health
department, and that defendants' failure to detect and prevent their
exposure to Bailey's tuberculosis amounted, at most, to negligence, which
is not actionable under 42 U.S.C. § 1983.     Cf. Farmer v. Brennan, 114 S.
Ct. 1970, 1979-81 (1994) (inmate must show in failure-to-protect claim
officials were subjectively aware of and disregarded substantial risk of
serious harm); Elliott v. Byers, 
975 F.2d 1375
, 1376 (8th Cir. 1992) (per
curiam) (prisoner must show pervasive risk of harm and failure of officials
to respond reasonably to risk); see also Ervin v. Busby, 
992 F.2d 147
, 151
(8th Cir.) (per curiam) (jail officials' negligence did not support § 1983
claim), cert. denied, 
114 S. Ct. 220
(1993).


     In addition, the district court correctly concluded that Selvey did
not provide sufficient evidence that defendants deliberately delayed
medical treatment.   Selvey did not assert that any delay in seeing a doctor
harmed his medical situation.   See Beyerbach v. Sears, 
49 F.3d 1324
, 1326
(8th Cir. 1995) (record must establish detrimental effect of delay in
treatment).


     The district court did not abuse its discretion in denying Selvey's
motions for appointment of counsel.    See Abdullah v. Gunter, 
949 F.2d 1032
,
1035 (8th Cir. 1991), cert. denied, 
504 U.S. 930
(1992).


     Finally, we agree that Carr did not demonstrate how any of the
defendants were personally involved in violating his constitutional rights.


     Accordingly, we affirm the judgment of the district court.




                                      -4-
A true copy.

     Attest:

           CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                            -5-

Source:  CourtListener

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