(caption unavailable)

* Local Rule 47.5 provides: "The publication of opinions that
have no precedential value and merely decide particular cases on
the basis of well-settled principles of law imposes needless
expense on the public and burdens on the legal profession."
Pursuant to that Rule, the Court has determined that this opinion
should not be published.
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
No. 91-5783
Summary Calendar
__________________
CALVIN JACKSON,
Plaintiff-Appellant,
versus
BEXAR COUNTY ADULT
DETENTION CENTER,
Defendant-Appellee.
______________________________________________
Appeal from the United States District Court for the
Western District of Texas
(SA-91-CA-357)
______________________________________________
(January 26, 1993)
Before GARWOOD, HIGGINBOTHAM, and BARKSDALE, Circuit Judges.*
GARWOOD, Circuit Judge:
Plaintiff-appellant Calvin Jackson (Jackson), pro se and in
forma pauperis, filed this suit under 42 U.S.C. § 1983 against
defendant-appellee Bexar County Adult Detention Center (BCADC)
alleging inadequate medical treatment while incarcerated there.

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1 In his complaint, Jackson did not allege whether he was in
BCADC as a convicted prisoner or a pretrial detainee. However,
in his objections to the magistrate judge's report below and in
his brief to this Court, Jackson has alleged that he was a
pretrial detainee. Additionally, BCADC in memorandum brief
concedes that Jackson "was a pre-trial detainee rather than a
convicted prisoner."
2
The district court granted summary judgment for BCADC, and Jackson
appeals.
Facts and Proceedings Below
Jackson was incarcerated in the Bexar County Adult Detention
Center between January and June 1991 as a pretrial detainee.1 On
February 2, 1991, Jackson injured his back. Jackson also suffered
from a chronic sinus condition. Jackson apparently saw a
physician's assistant (PA) on February 2 regarding his back, but
the PA did not examine Jackson and informed him that the pain was
in his mind. Jackson finally saw a doctor on February 11 regarding
his back.
On April 16, 1991, Jackson filed his complaint under 42 U.S.C.
§ 1983 against BCADC alleging lack of medical treatment. Jackson
asserted that on several occasions since February 2 he had
requested treatment or medication for his lower back pain without
receiving either. Jackson also claimed that his sinus problems had
been inadequately addressed by BCADC's medical staff. BCADC filed
a motion for a more definite statement. On May 16, 1991, the
magistrate judge granted BCADC's motion for more definite statement
and directed plaintiff to amend his complaint and provide further
factual allegations in support of his claim for relief.
On May 30, 1991, Jackson filed a "Response to a Motion for A

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3
More Definite Statement," listing specific events that he
characterized as inadequate medical care during February-May 1991.
In paragraph 10 of his Response, Jackson stated that he "is suing
PA Seanz, Joseph Valdez, Dr. John C. Sparks, Mr. Thomas Barry and
Sheriff Harland Copeland." The record reflects, however, that
Jackson never requested service of process on any of those persons
and that none of those individuals were, in fact, ever served. In
most of the subsequent pleadings that Jackson filed, he styled the
case "Calvin Jackson v. Bexar County Adult Detention Center, Thomas
Barry, Dr. John C. Sparks, Joseph Valdez, PA Seanz."
On June 11, 1991, BCADC filed a Motion to Dismiss or, in the
Alternative, for Summary Judgment, on the ground that Jackson
failed to allege facts or omissions sufficiently harmful to
evidence deliberate indifference to his serious medical needs. It
also asserted that it could not be vicariously liable for defaults
of its non-policymaking personnel not chargeable to its policies.
BCADC submitted an affidavit of Dr. John Sparks, which attached ten
pages of Jackson's Bexar County medical file detailing Jackson's
treatment for back and sinus pain from February 11 to June 3, 1991.
The records indicated nine medical visits, including one complete
physical with x-ray performed by a doctor at the emergency room.
The records further reflect that on seven occasions Jackson was
prescribed Motrin for his back pain and Maalox to ease any
accompanying stomach discomfort. Jackson was also frequently
prescribed Sudafed, Robitussin, Dimetapp, or Benadryl for his sinus
condition. The magistrate judge explained to Jackson the nature of
summary judgment procedure and directed Jackson to respond within

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4
ten days.
Jackson filed two pleadings responding to BCADC's motion. In
the first, Jackson asserted that his lower back had not been x-
rayed, that he was still in pain and had trouble sleeping, that
other medical treatment should have been administered, that he
should have been examined by a specialist, and that he had not been
seen on all of the occasions he requested treatment in the period
from February 11 to June 3. He also challenged three descriptions
in the medical reports as incorrect, claiming that they
mischaracterized his complaints or falsely reported that he had
played basketball or had a normal range of motion. Jackson also
responded that he had not been treated on February 2, the day of
the injury, and that BCADC had not shown that he had been so
treated. Also in response to BCADC's Motion for Summary Judgment,
Jackson filed a pleading entitled "Pleadings as Evidence," which
included copies of numerous requests and grievances that he had
submitted to BCADC, none of which refuted BCADC's evidence that
Jackson was treated repeatedly.
On September 5, 1991, the magistrate judge recommended
granting BCADC's motion for summary judgment. The magistrate judge
noted that the evidence "establishes that plaintiff was examined
and treated for his complaints of both lower back pain and sinus
discomfort on at least nine separate occasions between February 11
and June 3, 1991." The magistrate judge concluded that "the
quality of plaintiff's medical care during the relevant time period
is well within the requirements of the Constitution. The fact that
such medical care may not have given the plaintiff the relief he

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5
requested as quickly as the plaintiff would have wished does not
establish a constitutional deprivation."
On September 12, 1991, Jackson filed an "Answer" to the
Magistrate's Memorandum and Recommendation. In it, Jackson
asserted that he was a pretrial detainee and that he could "prove
beyond a reasonable doubt that the Defendant's Pa Seanz and Joseph
Valdez intentionally deprived the Plaintiff of Proper medical care
and treatment and needs." On September 26, 1991, the district
court considered the magistrate's recommendation and Jackson's
objections thereto. After making a de novo determination as to the
matters to which specific objections were made and conducting an
independent review of the record, the district court accepted the
magistrate's recommendation and granted summary judgment for BCADC.
Jackson timely filed a notice of appeal.
Discussion
Jackson appeals from the district court's entry of summary
judgment in favor of BCADC. Jackson argues that the magistrate
judge erred in determining that he received adequate medical care.
"This court reviews the grant of a summary judgment motion de novo,
using the same criteria used by the district court in the first
instance." Walls v. General Motors, Inc., 906 F.2d 143, 145 (5th
Cir. 1990). The evidence and any inferences to be drawn therefrom
are reviewed in the light most favorable to the non-moving party.
This Court thus affirms a grant of summary judgment where it is
convinced "`after an independent review of the record, that "there
is no genuine issue as to any material fact" and that the movant is
"entitled to judgment as a matter of law."'" Hartford Accident &

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6
Indem. Co. v. Costa Lines Cargo Serv., Inc., 903 F.2d 352, 362 (5th
Cir. 1990) (quoting Brooks, Tarlton, Gilbert, Douglas & Kressler v.
United States Fire Ins. Co., 832 F.2d 1358, 1364 (5th Cir. 1987)).
We note that BCADC suggested below that it was not a jural
entity capable of being sued. However, it did not clearly raise
this issue in its motion to dismiss or for summary judgment, which
was entirely directed to the merits. Neither the magistrate nor
the district court addressed in any way the question whether BCADC
was a legal entity subject to suit. BCADC was represented below,
and is represented on appeal, by the Criminal District Attorney of
Bexar County, Texas, and the mentioned motion to dismiss or for
summary judgment states at its end that the attorney signing it is
"Attorney for Defendant, Bexar County." BCADC's answer is
similarly signed by the Bexar County Criminal District Attorney and
his assistant as "Attorneys for Defendant, Bexar County." In its
appeal memorandum the BCADC does not urge affirmance on the basis
that it is not a legal entity subject to suit. Jackson does not
suggest that affirmance is improper because BCADC is not a jural
entity. We have stated in such cases that it would be appropriate
to allow the pro se plaintiff to amend to make the county, rather
than its jail, the party defendant. See Wright v. El Paso County
Jail, 642 F.2d 134, 136 n.3 (5th Cir. 1981). So, we turn to the
merits.
The Supreme Court has stated that in order to state a
cognizable section 1983 claim for lack of medical treatment, "a
prisoner must allege acts or omissions sufficiently harmful to
evidence deliberate indifference to serious medical needs."

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7
Estelle v. Gamble, 97 S.Ct. 285, 292 (1976). In contrast, the
rights of a pretrial detainee to medical care following his arrest
are governed by the due process clause of the Fourteenth Amendment
rather than the Eighth Amendment's prohibition against cruel and
unusual punishment. City of Revere v. Massachusetts Gen. Hosp.,
103 S.Ct. 2979, 2989 (1983). The due process rights of a pretrial
detainee are at least as great as the Eighth Amendment protections
available to the convicted prisoner; while the convicted prisoner
is entitled to protection only against punishment that is cruel and
unusual, the pretrial detainee, who has yet to be adjudicated
guilty of any crime, may not be subjected to any form of
punishment. Id. at 2983. But not every inconvenience encountered
during pretrial detention amounts to punishment in the
constitutional sense. To establish that a particular condition or
restriction of confinement is constitutionally impermissible
punishment, the pretrial detainee must show either that it was (1)
imposed with an expressed intent to punish or (2) not reasonably
related to any legitimate nonpunitive governmental objective, in
which case an intent to punish may be inferred. Cupit v. Jones,
835 F.2d 82, 85 (5th Cir. 1987) (citing Bell v. Wolfish, 99 S.Ct.
1861, 1871-74 (1979)). Thus, pretrial detainees are entitled "to
reasonable medical care unless the failure to supply it is
reasonably related to a legitimate governmental objective." Jones
v. Diamond, 636 F.2d 1364, 1378 (5th Cir.) (en banc), cert.
dismissed sub nom. Ledbetter v. Jones, 102 S.Ct. 27 (1981). We
have also recognized that no due process violation is established
if the case involves only negligence of the officials. Ortega v.

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8
Rowe, 796 F.2d 765 (5th Cir. 1986), cert. denied, 107 S.Ct. 1887
(1987). See also Davidson v. Cannon, 106 S.Ct. 668, 671 (1986);
Feagley v. Waddill, 868 F.2d 1437, 1440 (5th Cir. 1989); Partridge
v. Two Unknown Police Officers of the City of Houston, 791 F.2d
1182, 1187 (5th Cir. 1986).
In determining whether Jackson has stated a claim for lack of
medical treatment, we will look at two different periods: the
period between his injury and when he was first treated by a
doctor, February 2-11, and the period after February 11. We find
that Jackson has not presented any evidence that he received
inadequate medical care after February 11. The record reflects
that between February 11 and June, Jackson had nine medical visits
and usually received several prescriptions at each visit. While
the diagnoses and treatment were not to his liking and the visits
were not as frequent as he desired, Jackson's dissatisfaction alone
is insufficient to prove that his treatment was arbitrary or
purposeless after February 11. Jackson has not presented any issue
of material fact regarding whether he received adequate medical
care after February 11, and the district court properly entered
summary judgment for BCADC with regard to this period.
The period between February 2 and 11 is in a different
posture, however. Jackson has alleged that he was injured on
February 2, but did not see a doctor or receive medical treatment
until over a week later, on February 11. This delay in treatment
at least arguably does not qualify as reasonable medical care, and
BCADC does not posit, and it is not easy to imagine, any legitimate
government objective that such delay furthers. Despite this

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9
apparently plausible claim of lack of reasonable medical care, the
district court correctly granted summary judgment for BCADC.
Liability of a municipal entity under section 1983 cannot be
premised solely on a theory of respondeat superior. See Monell v.
Dep't of Soc. Serv. of City of N.Y., 98 S.Ct. 2018, 2036 (1978).
Jackson has not alleged that BCADC (or Bexar County), either by
formulating or implementing a policy regarding medical treatment,
was itself responsible for the delay in medical care.
Summary judgment was properly granted in favor of BCADC.
The district court did not address, however, Jackson's claim
of inadequate medical treatment with regard to the five individuals
listed in his Response. Jackson has alleged that these five
individuals were involved in depriving him of medical care during
the period between February 2 and February 11. Federal courts have
generally treated cases alleging a complete denial of medical care
more favorably than those alleging inadequate medical treatment.
See Estelle, 97 S.Ct. at 291 (concluding deliberate indifference is
manifested by intentionally denying or delaying access to medical
care); U.S. ex rel. Walker v. Fayette County, Penns., 599 F.2d 573,
575 n.2 (3rd Cir. 1979). While Jackson's pro se complaint against
these five defendants, as amended by his Response, appears to lack
the factual specificity necessary to survive a motion to dismiss or
a motion for summary judgment, the Supreme Court has cautioned that
complaints filed in forma pauperis should not automatically be
dismissed as frivolous under 28 U.S.C. § 1915(d) because the
complaint fails to state a claim. See Neitzke v. Williams, 109
S.Ct. 1827, 1834 (1989). Instead, section 1915(d) "accords judges

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2 Jackson has filed a Motion for Summary Judgment and a Motion
for Subpoena Duces Tecum with this Court. In his Motion for
Subpoena Duces Tecum, Jackson apparently seeks to have this Court
order the production of certain medical records that were not
before the district court and then supplement the record with
these documents. Given that these documents were not presented
to the district court, we deny his request that the record be
supplemented with these documents. We also deny his Motion for
Summary Judgment. Jackson is free, however, to present these
motions to the district court on remand in reference to the five
mentioned individuals.
10
not only the authority to dismiss a claim based on an indisputably
meritless legal theory, but also the unusual power to pierce the
veil of the complaint's factual allegations and dismiss those
claims whose factual contentions are clearly baseless." Id. at
1833. At this stage of the proceedings, it is impossible to tell
with certainty that Jackson is unable to make any rational argument
in law or fact to support his claim for relief against these
individuals. Thus, we must remand this case for further
proceedings as to these five individuals. We remand solely so the
district court has the opportunity to address specifically
Jackson's claims against these five individuals.2
Conclusion
We affirm the district court's grant of summary judgment in
favor of BCADC (and Bexar County). The district court, however,
failed to discuss Jackson's claim of lack of medical treatment
against PA Seanz, Joseph Valdez, Dr. John C. Sparks, Mr. Thomas
Barry, and Sheriff Harland Copeland. Accordingly, we remand for
the district court to address Jackson's claims against these five
individuals.
AFFIRMED in part and REMANDED in part

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