United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS December 2, 2003 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk

No. 02-61010 Summary Calendar

BOBBY SERTON,

Plaintiff-Appellant, versus

BILLIE SOLLIE, Individually and as Sheriff of Lauderdale County, Mississippi; DORIS CALLAHAN, Individually and as Jail Administrator; SARAH P. SPRINGER, Individually and as Chancellor of Lauderdale County, Mississippi; LAUDERDALE COUNTY BOARD OF SUPERVISORS; LAURENCE PRIMEAUX; WILLIAM B. JACOB,

Defendants-Appellees.

-------------------- Appeal from the United States District Court for the Southern District of Mississippi USDC No. 4:01-CV-90-LN --------------------

Before JONES, BENAVIDES, and CLEMENT, Circuit Judges.

PER CURIAM:*

Bobby Serton has appealed the district court’s judgment

dismissing his civil action asserting various claims related to

his incarceration for civil contempt for failure to pay past-due

child support. See Serton v. Serton,

(Miss. Ct.

App. 2002). In his amended complaint, Serton named as

defendants: Billy Sollie, the Sheriff of Lauderdale County,

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 02-61010 -2-

Mississippi; Doris Callahan, Jail Administrator; Sarah P.

Springer, chancellor of the Twelfth Chancery Court; the

Lauderdale County Board of Supervisors (“Board of Supervisors”);

attorney Lawrence Primeaux; and attorney William Jacob. The

district court dismissed the claims against Chancellor Springer

and granted motions for summary judgment by the remaining

parties.

Serton contends that the district court erred in holding

that Chancellor Springer was entitled to judicial immunity and in

granting her motion to dismiss. We review the district court’s

dismissal under FED. R. CIV. P. 12(b)(6) for failure to state a

claim de novo. Brown v. NationsBank Corp.,

(5th Cir. 1999). Judicial officers are entitled to absolute

immunity from claims arising out of acts performed in the

exercise of their judicial functions. Graves v. Hampton,

(5th Cir. 1993). Judicial immunity may be overcome only

by showing that the actions complained of were nonjudicial in

nature or were taken in the complete absence of all jurisdiction.

Mireless v. Waco,

(1991). Serton has failed to

make such a showing. See Malina v. Gonzales,

,

1124–25 (5th Cir. 1993).

Serton contends that the district court erred in granting

the motions for summary judgment filed by attorneys Primeaux and

Jacob, Sheriff Sollie, and Jail Administrator Callahan. Summary

judgment is appropriate “if the pleadings, depositions, answers No. 02-61010 -3-

to interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to a judgment

as a matter of law.” FED. R. CIV. P. 56(c); see Celotex Corp. v.

Catrett,

(1986). “If the moving party meets

the initial burden of showing there is no genuine issue of

material fact, the burden shifts to the nonmoving party to

produce evidence or designate specific facts showing the

existence of a genuine issue for trial.” Allen v. Rapides Parish

Sch. Bd.,

(5th Cir. 2000) (internal quotations

and citation omitted).

Defendant Primeaux represented Serton in the divorce action

prior to being permitted to withdraw. See Serton,

. Characterizing Serton’s claim against Primeaux as a legal-

malpractice action, the district court held that Serton’s claims

against Primeaux are time-barred under state law. Serton

contends that the limitation period should be equitably tolled

because he suffered from a mental deficiency. Under state law,

limitation periods are tolled during periods in which the

claimant is disabled by “infancy or unsoundness of mind.” MISS.

CODE ANN. § 15-1-59 (West 2003). “The test as to whether the

claimant is so mentally incompetent as to toll the running of the

statute of limitations, is this: Is his mind so unsound, or is

he so weak in mind, or so imbecile, no matter from what cause,

that he cannot manage the ordinary affairs of life?” USF&G Co. No. 02-61010 -4-

v. Conservatorship of Melson,

(Miss. 2002)

(internal quotation marks omitted). Serton stated in his

affidavit in opposition to the motion for summary judgment that

he became suicidal and “mentally incompetent” on June 13, 2000.

That one is suicidal does not establish that his mind is so

unsound that he is unable to manage his ordinary affairs.

Serton’s unsupported assertion regarding his mental competency is

not sufficient to show that there was a genuine issue of material

fact with respect to his soundness of mind.

In granting the motion for summary judgment of attorney

Jacob, who represented Serton’s wife in the divorce proceeding,

the district court held that Serton had failed to show that

Jacob’s alleged statutory and constitutional violations were the

proximate cause of Serton’s incarceration for contempt of court.

Serton contends on appeal that Jacob’s failure to serve him

properly with notice of a September 7, 1999, contempt hearing

prevented him from proving to the trial court his inability to

pay the child support arrearages and that Jacob obtained the

judgment of divorce fraudulently by causing him to be

incarcerated. Serton contends that Jacob violated his right to

due process by obtaining his incarceration in order to obtain an

unfair advantage in the divorce proceeding.

In its opinion and judgment, dated April 21, 1998, the state

court found Serton in contempt, but suspended incarceration on

the condition that he purge himself from contempt. Serton’s No. 02-61010 -5-

failure to comply with the court’s orders resulted in his

incarceration for contempt on September 7, 1999. Jacob stated in

his affidavit filed in support of the motion for summary judgment

that Serton was notified by mail of the hearing. Serton did not

state in his affidavit in opposition to the motion for summary

judgment that he did not know that the matter had been set for

hearing. There is no genuine issue whether Jacob’s failure to

personally serve Serton with process was the proximate cause of

his incarceration.

Moreover,

provides a private right of

action for persons who have been deprived of a right secured

under the Constitution by a person acting under color of state

law. Serton contends that Jacob acted as a state actor “when he

invoked the enforcement of the purported ‘Temporary Agreed

Judgment’ without service of any summons . . . .” This argument

is without merit. “[P]rivate attorneys, even court-appointed

attorneys, are not official state actors, and generally are not

subject to suit under section 1983.” See Mills v. Criminal Dist.

Court No. 3,

(5th Cir. 1988). Private

attorneys may, however, be liable under

if they

conspire with governmental officials. See

Serton does not

argue on appeal that Jacob conspired with a government official.

Underlying Serton’s various claims against Sheriff Sollie

and Jail Administrator Callahan is the question whether Serton’s

status as a person incarcerated for civil contempt affects the No. 02-61010 -6-

analysis of his constitutional claims. We assume without

deciding that Serton’s claims should be analyzed in light of the

standards applicable to claims asserted by pre-trial detainees.

The standard applied in analyzing constitutional challenges

by pretrial detainees hinges upon the classification of the

challenge as an attack on a condition of confinement or as an

episodic act or omission. Hare v. City of Corinth,

(5th Cir. 1996) (en banc). Conditions of confinement claims

are analyzed under the reasonable-relationship test of Bell v.

Wolfish,

(1979). Under this standard, a

constitutional violation exists only if it is determined that the

complained-of condition is not reasonably related to a

legitimate, non-punitive governmental objective. See Hare,

. When the complained-of harm involves an episodic

act or omission, the claimant must show that the individual

defendant acted with subjective deliberate indifference to the

detainee’s constitutional rights. See

at 649 n.4.

Serton’s main complaint on appeal is that he was housed in

administrative segregation on 23-hour lockdown from May 9, 2000,

to October 18, 2000, without predeprivation notice and hearing.

See Wolff v. McDonnell,

(1974). In

considering whether a condition of confinement resulted in the

deprivation of liberty without due process of law, the inquiry

focuses on whether the condition or restriction was punitive

because the State may not punish pretrial detainees. Bell, 441 No. 02-61010 -7-

U.S. at 535. The fact that “detention interferes with the

detainee’s understandable desire to live as comfortably as

possible” does not equate to punishment. Id. at 537. However,

an arbitrary or purposeless restriction on a pretrial detainee

leads to the inference that the restriction is punitive. See

Olgin v. Darnell,

(5th Cir. 1981). “[T]he

effective management of the detention facility once the

individual is confined is a valid objective that may justify

imposition of conditions and restrictions of pretrial detention

and dispel any inferences that such restrictions are intended as

punishment.”

(quoting Bell,

).

The summary judgment evidence reflects that Serton’s

placement in 23-hour lockdown was for his own protection and for

the protection of other inmates and was not punishment for a

disciplinary violation. Serton’s conclusional statements and

suppositions in his affidavit are not sufficient to show that

there is a genuine issue whether the lockdown was punitive. Nor

has Serton shown that there is a genuine issue whether Sheriff

Sollie and Jail Administrator Callahan acted with subjective

deliberate indifference to Serton’s right to due process.

See Hare,

n.4.

For the same reasons, Serton cannot show that Sheriff Sollie

and Jail Administrator Callahan acted with subjective deliberate

indifference by taking his walking cane away. The summary

judgment evidence shows that the cane was taken because Serton No. 02-61010 -8-

used it to threaten other inmates. On appeal, Serton contends

only that the reasons for taking the cane away were insufficient

and that his cane was taken away because he was accused falsely

by other inmates of threatening behavior.

This claim implicates the adequacy of the medical care

provided in the jail. “[T]here is no significant distinction

between pretrial detainees and convicted inmates concerning basic

human needs such as medical care.” Gibbs v. Grimmette,

(5th Cir. 2001). To establish liability, a pretrial

detainee must “show that a state official acted with deliberate

indifference to a substantial risk of serious medical harm and

that injuries resulted.” Wagner v. Bay City, Tex.,

(5th Cir. 2000); see Estelle v. Gamble,

(1976). “‘Deliberate indifference’ requires that the official

have subjective knowledge of the risk of harm.” Wagner,

.

Serton contends that he had a medical prescription for the

cane prior to his incarceration and that he told the jail medical

staff of this fact on his arrival at the jail. This fact, if

true, does not show that Sheriff Sollie and Jail Administrator

Callahan were subjectively aware of this fact or that they acted

with deliberate indifference to Serton’s need for a cane. See

Thompkins v. Belt,

(5th Cir. 1987)

(“[S]upervisory officials are not liable for the actions of

subordinates on any theory of vicarious liability.”). No. 02-61010 -9-

Serton complains that he became depressed and suicidal while

in lockdown and that Sheriff Sollie and Jail Administrator

Callahan acted with deliberate indifference to his mental

condition. The record reflects that, after Serton threatened to

commit suicide, he was placed on suicide watch until he could be

seen by a counselor. Serton argues only that Sheriff Sollie and

Jail Administrator Callahan caused his depression by putting him

in lockdown, by taking his cane away, and by making him

uncomfortable. These allegations do not show that the defendants

acted with deliberate indifference to his mental condition.

Serton contends that he became diabetic as a result of the

stress of incarceration and that he was not provided with

immediate treatment. These allegations do not show that the

defendants acted with deliberate indifference to a serious

medical condition. The record reflects that Serton’s diabetes

was treated.

Serton has raised no issue with respect to the granting of

summary judgment for the Board of Supervisors or with respect to

his Fourth Amendment, denial-of-access-to-courts, and state-law

tort claims. Accordingly, those claims are abandoned. See Yohey

v. Collins,

(5th Cir. 1993).

The judgment is AFFIRMED.