Filed: Mar. 13, 2002
Latest Update: Feb. 21, 2020
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _ No. 01-10143 _ DANETTE HOPE GROS; EDITH D. SIKES, Plaintiffs-Appellants, versus CITY OF GRAND PRAIRIE, TEXAS, ET AL. Defendants, CITY OF GRAND PRAIRIE, TEXAS; HARRY L. CRUM; RICHARD L. BENDER Defendants-Appellees. _ Appeal from the United States District Court for the Northern District of Texas - Dallas Division (3:96-CV-2897-D) _ March 12, 2002 Before JONES, WIENER, and PARKER, Circuit Judges. PER CURIAM:* Plaintiffs-Appellants Danet
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _ No. 01-10143 _ DANETTE HOPE GROS; EDITH D. SIKES, Plaintiffs-Appellants, versus CITY OF GRAND PRAIRIE, TEXAS, ET AL. Defendants, CITY OF GRAND PRAIRIE, TEXAS; HARRY L. CRUM; RICHARD L. BENDER Defendants-Appellees. _ Appeal from the United States District Court for the Northern District of Texas - Dallas Division (3:96-CV-2897-D) _ March 12, 2002 Before JONES, WIENER, and PARKER, Circuit Judges. PER CURIAM:* Plaintiffs-Appellants Danett..
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________________
No. 01-10143
_______________________________
DANETTE HOPE GROS; EDITH D. SIKES,
Plaintiffs-Appellants,
versus
CITY OF GRAND PRAIRIE, TEXAS, ET AL.
Defendants,
CITY OF GRAND PRAIRIE, TEXAS; HARRY L. CRUM; RICHARD L. BENDER
Defendants-Appellees.
_________________________________________________
Appeal from the United States District Court
for the Northern District of Texas - Dallas Division
(3:96-CV-2897-D)
_________________________________________________
March 12, 2002
Before JONES, WIENER, and PARKER, Circuit Judges.
PER CURIAM:*
Plaintiffs-Appellants Danette Hope Gros and Edith D. Sikes
(collectively, “Appellants”) appeal from adverse summary judgment
orders dismissing their 42 U.S.C. § 1983 claims against the City of
Grand Prairie, Texas (the “City”) and Harry Crum, the Chief of the
*
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this opinion should not be published and is not precedent except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.
1
City of Grand Prairie Police Department (“GPPD”). We affirm both
grants of summary judgment.
I. Facts and Proceedings
This is our third encounter with these parties related to the
same underlying occurrences. Although the operative facts are
recounted fully in the second of our two previous encounters,1 we
provide here the abbreviated version from our first encounter2:
This suit grew out of allegations by Gros and Sikes
that Eric Rogers, a former GPPD officer, physically,
sexually, and verbally abused them. Gros contends that
during a routine traffic stop in August 1995, Officer
Rogers used excessive and improper force against her,
including grabbing her breast and placing her in the back
of his squad car on a hot day with the windows closed.
Sikes asserts that Rogers, while responding to a call in
February 1996, sexually abused her by grabbing her breast
and placing his hand in her pants. Both Gros and Sikes
filed complaints with the GPPD Internal Affairs
Department. Sikes also testified before a grand jury
which indicted Officer Rogers on charges of “official
oppression.” Rogers was terminated by the GPPD following
an internal investigation.3
Gros and Sikes filed their § 1983 claims against the City,
Chief Crum, and Lieutenant Bender, the officer in charge of the
GPPD’s Department of Internal Affairs. In February 1998, the
district court granted the City’s motion for summary judgment,
holding that the City was not liable under § 1983 because Gros and
1
Gros v. City of Grand Prairie, Tex., 209 F.3d 431 (5th
Cir. 2000).
2
Gros v. City of Grand Prairie, Tex., 181 F.3d 613 (5th
Cir. 1999).
3
Gros, 181 F.3d at 614.
2
Sikes had failed to show that Chief Crum possessed final policy-
making authority over the GPPD’s policy, as would be required if
their municipal liability claim were to succeed. At the same time,
the district court also dismissed all claims against Chief Crum and
Lieutenant Bender in their official capacities.
Appellants appealed the district court’s grant of summary
judgment to the City, and in July 1999 we vacated that ruling,
holding that the court had relied on erroneous legal standards in
determining whether the City could be held liable under § 1983 for
the alleged constitutional violations of its chief of police. We
remanded the case to the district court “to make a first
determination of whether state law entrusted Chief Crum with the
final policymaking authority that could establish the City’s § 1983
liability,” and to allow the parties to present arguments
“concerning the sources of state law impacting upon the locus of
policymaking authority over the GPPD.”4
In the meantime, back at the district court, Chief Crum and
Lieutenant Bender had filed motions for summary judgment based on
a defense of qualified immunity for the Appellants’ § 1983 claims
against them in their supervisory capacities. The district court
granted Bender’s motion for summary judgment, and Appellants did
not appeal that ruling at that time. The district court granted
Chief Crum’s motion with respect to the claims that he (1)
4
Id. at 617.
3
maintained an improper hiring policy and (2) improperly trained and
supervised Rogers. The court refused to grant qualified immunity
to Chief Crum with respect to his hiring of Rogers, however.
Crum appealed the court’s denial of qualified immunity as to
the hiring of Rogers, and in April 2000, we reversed that denial
and remanded the case, holding that the evidence was insufficient
to show that Chief Crum was deliberately indifferent to Appellants’
constitutional rights when he made the decision to hire Rogers.5
At the same time, Appellants had cross-appealed the district
court’s grants of qualified immunity to Chief Crum on the hiring
policy and training and supervision claims, but they “properly
recognize[d]” that “the appeal of summary judgment on these two
claims [was] an interlocutory appeal not typically immediately
reviewable by this court.”6 We declined to exercise pendent
appellate jurisdiction over the cross-appeal.7 Accordingly,
Appellants’ objections to the grant of qualified immunity to Chief
Crum on the hiring policy and training and supervision claims have
not yet been reviewed by us.
Finally, the district court turned its attention for the
second time to the City’s municipal liability. The district court
issued its Memorandum Opinion and Order on the City’s renewed
5
Gros, 209 F.3d 431 (5th Cir. 2000).
6
Id. at 436.
7
Id. at 437.
4
motion for summary judgment in December 2000, granting the City’s
motion and once again dismissing the action as to City and as to
Chief Crum and Lieutenant Bender in their official capacities. In
its ruling, the district court cited U.S. Supreme Court authority
for the proposition that a municipality can be held liable only
“when execution of a government’s policy or custom, whether made by
its lawmakers or by those whose edicts or acts may fairly be said
to represent official policy, inflicts the injury,”8 and noted that
the policy or custom must be attributable to a person with
policymaking authority. The district court held as a matter of law
that Chief Crum did not exercise policymaking authority for the
City, “at least in any respect that would permit [plaintiffs] to
recover against the City on the claims at issue in this case,” and
noted that Gros and Sikes had not identified any other potential
policymakers through whom the City could be held liable.
Proceeding in the alternative, the court then assumed arguendo
that Chief Crum did have policymaking authority and determined that
the City would nevertheless not be liable. Referring to its own
earlier ruling concerning Chief Crum’s qualified immunity on the
hiring policy and training and supervision claims, and to our
ruling on the claim based on the hiring of Rogers, the district
court held that Crum’s acts and omissions with regard to GPPD’s
hiring policy generally, the hiring of Rogers in particular, and
8
Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978).
5
the training and supervision of Rogers, did not rise to the level
of deliberate indifference required to establish the City’s
liability. Accordingly, the district court once again dismissed
the action as to the City and as to Chief Crum and Lieutenant
Bender in their official capacities, and issued a January 2001
order effectuating the same.
Appellants filed a timely notice of appeal of the district
court’s December 2000 ruling on the City’s liability.
II. Analysis
A. Standard of Review
We review a grant of summary judgment de novo, applying the
same standard as the district court.9 A motion for summary
judgment is properly granted only if there is no genuine issue as
to any material fact.10 An issue is material if its resolution
could affect the outcome of the action.11 In deciding whether a
fact issue has been created, we must view the facts and the
inferences to be drawn therefrom in the light most favorable to the
9
Morris v. Covan World Wide Moving, Inc.,
144 F.3d 377, 380
(5th Cir. 1998).
10
Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986).
11
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986).
6
nonmoving party.12
The standard for summary judgment mirrors that for judgment as
a matter of law.13 Thus, the court must review all of the evidence
in the record to which the parties invite the court’s attention,14
but make no credibility determinations or weigh any evidence.15 In
reviewing all the evidence, the court must disregard all evidence
favorable to the moving party that the jury is not required to
believe, and should give credence to the evidence favoring the
nonmoving party as well as that evidence supporting the moving
party that is uncontradicted and unimpeached.16
B. Discussion
1. Municipal Liability
Section 1983 provides, in relevant part:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, or any State or Territory
or the District of Columbia, subjects, or causes to be
subjected, any citizen of the United States or other
person within the jurisdiction thereof to the deprivation
of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party
injured in an action at law, suit in equity, or other
proper proceeding for redress.
12
See Olabisiomotosho v. City of Houston, 185 F.3d 521, 525
(5th Cir. 1999).
13
Celotex Corp., 477 U.S. at 323.
14
See Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915 n.7
(5th Cir. 1992), cert. denied,
506 U.S. 832 (1992).
15
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S.
133, 150 (2000).
16
Id. at 151.
7
In Board of County Commissioners of Bryan County, Okl. v. Brown
(“Brown”)17, the U.S. Supreme Court discussed at length the
imposition of § 1983 liability on a municipality. Although a
municipality is a “person” for purposes of § 1983, the Court
emphasized that the statute imposes liability only on the one who
subjects another to the deprivation of guaranteed rights,
privileges, or immunities, and that “a municipality may not be held
liable under § 1983 solely because it employs a tortfeasor.”18 As
the Court noted, “[w]e have consistently refused to hold
municipalities liable under a theory of respondeat superior.”19
Instead, “a plaintiff seeking to impose liability on a
municipality under § 1983 [must] identify a municipal ‘policy’ or
‘custom’ that caused the plaintiff’s injury.”20 This requirement
“ensures that a municipality is held liable only for those
deprivations resulting from the decisions of its duly constituted
legislative body or of those officials whose acts may fairly be
said to be those of the municipality.”21 If the deprivation is
alleged to have resulted from a “custom,” it must be a custom that
is “so widespread as to have the force of law” before § 1983
17
520 U.S. 397 (1997).
18
Brown, 520 U.S. at 403.
19
Id.
20
Id.
21
Id. at 403-04.
8
liability may fairly be imposed on the municipality.22 In either
case, the execution of the government’s policy or custom must be
attributable to the municipality’s “lawmakers or...those whose
edicts or acts may fairly be said to represent official policy.”23
If the plaintiff succeeds in identifying a specific
governmental policy or custom and a person with policymaking
authority, the plaintiff must next show that the municipality,
through its deliberate conduct, was the moving force behind the
injury alleged.24 At this stage, the U.S. Supreme Court has
cautioned us to proceed slowly before imposing municipal liability.
As the Court explains, “the conclusion that the action taken or
directed by the municipality or its authorized decisionmaker itself
violates federal law will also determine that the municipal action
was the moving force behind the injury of which the plaintiff
complains.”25 The Court contrasts that situation with one in which
the action taken by the alleged policymaker is “itself legal,”26
such as the hiring of an officer who later uses excessive force.
With respect to this latter situation, the Court admonishes:
Where a plaintiff claims that the municipality has not
directly inflicted an injury, but nonetheless has caused
22
Id. at 404.
23
Monell, 436 U.S. at 694.
24
See Brown, 520 U.S. at 404.
25
Id. at 405 (emphasis added).
26
Id. (emphasis added).
9
an employee to do so, rigorous standards of culpability
and causation must be applied to ensure that the
municipality is not held liable solely for the actions of
its employee.27
To meet these “rigorous standards,” plaintiffs like Gros and Sikes
who seek to show that a “facially lawful municipal action” has led
an employee to violate their rights, “must demonstrate that the
municipal action was taken with ‘deliberate indifference’ as to its
known or obvious consequences. A showing of simple or even
heightened negligence will not suffice.”28
In the instant case, Appellants contend that the district
court erred in failing to find that Chief Crum held policymaking
authority sufficient to support their claim that the City was
liable for the violation of their constitutional rights.29 They
insist that an individual can be endowed with policymaking
authority either through positive law or by “‘custom or usage’
having the force of law”30; that the City showed only that Chief
27
Id. (emphasis added).
28
Id. at 407 (internal citation omitted) (emphasis added).
29
The district court observed that “plaintiffs have not
identified any...potential policymaker [other than Chief Crum]
who participated in the violations of their constitutional
rights,” and therefore declined to hold the City liable under §
1983 after it concluded that Chief Crum did not exercise
policymaking authority. Gros v. City of Grand Prairie, Tex.,
2000 WL 1842421, at *3 (Dec. 12, 2000). We note, similarly, that
Appellants have not urged us on appeal to consider anyone but
Chief Crum as a potential policymaker, and we have not done so.
30
Jett v. Dallas Independent School District, 491 U.S. 701,
737 (1989).
10
Crum was not entrusted with such authority through the positive
law; and that they (Appellants) provided “a plethora of evidence
demonstrating the custom and usage of the City as having reposited
the pertinent policymaking authority with Chief Crum.” They argue
with particular urgency that the district court erred when it
failed to find that Chief Crum exercised policymaking authority
over the training of GPPD officers.
As a preliminary matter, we take issue with the Appellants’
contention that the district court failed to consider their
proffered evidence showing that Chief Crum had been delegated
policymaking authority through custom or usage. That court’s
thoughtful opinion demonstrates beyond cavil that it did consider
their evidence. It simply found that evidence lacking:
Although state and local law does not grant formal
policymaking authority to Chief Crum, Plaintiffs argue
that the City has informally delegated policymaking
authority to him in the areas of hiring, training,
supervising, and disciplining officers. They cite
several statements by Chief Crum and others suggesting
that Chief Crum exercises significant control within the
Police Department. At most, however, these statements
demonstrate that Chief Crum had the decisionmaking
authority to run the day-to-day operations of the Police
Department. “[P]olicymaking authority is more than
discretion, and it is far more than the final say-so[.]”
Bennett v. City of Slidell, 728 F.2d 762, 769 (5th Cir.
1984) (en banc). “Policymakers act in the place of the
governing body in the area of their responsibility; they
are not supervised except as to the totality of their
performance.” Id. The record shows that although the
City Manager delegated certain duties to the Police
Chief, he maintained responsibility for setting policy
for the Police Department. Accordingly, the court holds
as a matter of law that Chief Crum did not exercise
policymaking authority for the City, at least in any
respect that would permit [plaintiffs] to recover against
11
the City on the claims at issue in this case. Because
plaintiffs have not identified any other potential
policymaker who participated in the violations of their
constitutional rights, the court holds that the City is
not liable under § 1983.31
We need not concern ourselves further with the question whether
Appellants succeeded in showing that Chief Crum exercised the
requisite policymaking authority, because we agree with the
district court’s alternative analysis, at the completion of which
the court concluded that, even if Chief Crum had had policymaking
authority, the City would nevertheless not be liable.
As emphasized above, a plaintiff who seeks to impose § 1983
liability on a municipality for a facially lawful action (such as
hiring and training police officers) “must demonstrate that the
municipal action was taken with ‘deliberate indifference’ as to its
known or obvious consequences. A showing of simple or even
heightened negligence will not suffice.”32 Instead, this “stringent
standard of fault...require[s] proof that a municipal actor
disregarded a known or obvious consequence of his action.”33 That
is, “[a] plaintiff must demonstrate that a municipal decision
reflects deliberate indifference to the risk that a violation of a
particular constitutional or statutory right will follow the
31
Gros, 2000 WL 1842421, at *3 (internal citations to the
record omitted).
32
Brown, 520 U.S. at 407 (internal citation omitted)
(emphasis added).
33
Id. at 410.
12
decision.”34
In the context of assessing Chief Crum’s defense of qualified
immunity, the district court examined the same hiring and training
policies by which Appellants seek to impose municipal liability on
the City. With respect to the hiring policy claim, the court
observed:
[Appellants] assert that Chief Crum’s hiring policy
itself was a repudiation of their constitutional rights
because Chief Crum (1) made the decision to hire an
officer before the candidate submitted to a psychological
examination, (2) never reviewed the results of any
candidate’s psychological test, (3) never examined a
candidate’s permanent file in the human resources
department, and (4) previously hired two officers who
were fired from the Euless Police Department for use of
excessive force.
The court holds that Chief Crum is entitled to
qualified immunity on these claims because his actions
were objectively reasonable. A reasonable person in
Chief Crum’s position could believe that the preliminary
job offer did not violate any constitutional rights
because the offer was always conditioned on the
candidate’s passing a psychological test. It was
reasonable for a Chief of Police to delegate to
subordinates certain tasks in the hiring process, such as
the administration and grading of a psychological test
and the examination of a person’s work history. Chief
Crum’s practice of hiring police who were fired for one
incident of excessive force is objectively reasonable.
See Brown, 520 U.S. at ___, 117 S.Ct. at 1393 (holding
that supervisor who hired applicant with one conviction
for assault and battery was not liable under § 1983).35
From this analysis, the court concluded that it was proper to grant
qualified immunity to Chief Crum on Appellants’ hiring policy
34
Id. at 411 (emphasis added).
35
Gros v. City of Grand Prairie, Tex., 1999 WL 102800, at
*3 (Feb. 22, 1999) (internal citations to the record omitted)
(emphasis added).
13
claims.
Again in the context of the qualified immunity inquiry, the
district court concluded that Chief Crum was entitled to immunity
on Appellants’ training and supervision claims. First, the court
determined that Chief Crum’s failure to provide Rogers’s immediate
supervisors with a copy of the psychologist’s report or a summary
of Gros’s complaint was objectively reasonable, noting that “Chief
Crum’s failure to provide Officer Rogers’ supervisors with these
documents did not violate plaintiffs’ constitutional rights.”36
With respect to Appellants’ contentions that Chief Crum should be
liable “because he was aware that GPPD officers were acting
inappropriately towards citizens,”37 the court observed:
Plaintiffs have failed to identify the particular
deficiency in the officers’ training programs. Instead,
[Appellants] merely assert that GPPD never taught “civil
rights” to its officers. This conclusory contention is
insufficient, however, to permit a reasonable trier of
fact to find that Chief Crum was deliberately indifferent
to their constitutional rights through his failure to
train Officer Rogers.38
It is obvious from the foregoing that the district court
concluded that any deficiency in Chief Crum’s conduct in connection
with the hiring, training, and supervision policies at issue ——
most of which the court deemed objectively reasonable —— did not
36
Id. at *4 (emphasis added).
37
Id. at *6.
38
Id. (internal citations to the record omitted) (emphasis
added).
14
rise to the level of the “stringent standard” of deliberate
indifference to Appellants’ constitutional rights. Referring to
our earlier decision in this case, in which we held that Chief
Crum’s hiring of Rogers did not constitute deliberate indifference,
the district court correctly summed up its analysis of Appellants’
municipal liability claims:
Although the circuit court’s decision arose in the
context of qualified immunity, it applies equally to the
question whether Chief Crum violated plaintiffs’
constitutional rights by exhibiting deliberate
indifference with regard to the hiring, supervising,
training, and disciplining of Officer Rogers.
Furthermore, a reasonable jury could not find that Chief
Crum’s policies regarding the hiring, supervising,
training, and disciplining of officers were deliberately
indifferent to plaintiffs’ constitutional rights.
Accordingly, even if Chief Crum is a policymaker for the
City, his conduct cannot give rise to municipal liability
under § 1983.39
We agree with the district court’s analysis and conclusion, and
affirm its grant of summary judgment to the City.40
2. Qualified Immunity for Police Chief Crum
As explained above, when the district court addressed Chief
39
Gros, 2000 WL 1842421, at *4.
40
The district court correctly observed that, “[b]ecause
plaintiffs’ action against Chief Crum...in [his] official
capacit[y] is the same as a suit against the City, the motion,
and the court’s decision today, also apply to [Chief Crum] in
[his] official capacit[y].” (Citing Kentucky v. Graham, 473 U.S.
159, 165-66 (1985)). Our affirmance of the summary judgment in
favor of the City therefore has the concomitant effect of
affirming the district court’s dismissal of the Appellants’
claims against Chief Crum and Lieutenant Bender in their official
capacities.
15
Crum’s qualified immunity defense, it held that he was entitled to
qualified immunity for Appellants’ hiring policy and training and
supervision policy claims, but was not entitled to qualified
immunity for the claims premised on his hiring of Officer Rogers.
Chief Crum appealed the denial of qualified immunity, and in April
2000, we reversed that denial, holding that Crum was not
deliberately indifferent in connection with his hiring of Rogers.
At that time, we declined to address Appellants’ cross-appeal of
the grant of qualified immunity to Chief Crum on the hiring policy
and training and supervision policy claims. We turn now to
Appellants’ appeal of those two district court rulings.
As a threshold matter, Chief Crum insists that Appellants did
not perfect the appeal of the grant of qualified immunity to him
because their notice of appeal referenced only the district court’s
December 2000 Memorandum and Order, the sole focus of which was the
City’s municipal liability. He argues that the Appellants’ notice
of appeal is insufficient to revive their interlocutory cross-
appeal over which we refused to exercise jurisdiction in April
2000. In October 2001, a panel of this court denied Chief Crum’s
motion to dismiss Appellants’ appeal on precisely the same grounds
as he re-urges now. The October ruling implicitly found that
Appellants have properly perfected the appeal of the grant of
qualified immunity to Chief Crum. Although we are not bound by the
16
motions panel’s determinations on such questions,41 we do agree with
that panel’s ruling.
The district court’s December 2000 memorandum opinion and
order disposing of the Appellants’ municipal liability claims
against the City was referenced in a final judgment entered by
district court pursuant to Fed. R. Civ. P 54(b) in January 2001.
That judgment states, in relevant part:
For the reasons set out in a memorandum opinion and
order filed December 12, 2000, and the court by prior
judgments having dismissed all other claims in this case
against all defendants except defendant Eric Rogers
(“Rogers”), individually, it is ordered and adjudged that
plaintiffs’ actions against all defendants, except
defendant Rogers, are dismissed with prejudice....
Pursuant to Fed. R. Civ. P. 54(b), the court
expressly determines that there is no just reason for
delay and directs the clerk of court to enter this as a
final judgment. [Emphasis added.]
Appellants’ notice of appeal, in turn, states:
Notice is hereby given that [Appellants] hereby
appeal to the United States Court of Appeals for the
Fifth Circuit from the Memorandum Opinion and Order
signed by the Court on December 12, 2000.... Said Order
of the Court was made final and appealable by entry of a
Rule 54(b) Judgment signed by the Court on January 8,
2001....
It is true that Appellants’ notice of appeal refers only to
the December 2000 memorandum opinion and order, and not to the
February 1999 opinion and order in which the district court granted
summary judgment to Chief Crum and Lieutenant Bender based on
qualified immunity. We nevertheless conclude, on these facts, that
41
See, e.g., In re Grand Jury Subpoena, 190 F.3d 375, 378
n.6 (5th Cir. 1999).
17
Appellants have perfected their appeal of the February 1999 ruling.
In Trust Co. of Louisiana v. N.N.P., Inc.,42 responding to an
argument that an issue had not been preserved for appeal, we
observed:
We have held that where a party designates in the notice
of appeal particular orders only (and not the final
judgment), we are without jurisdiction to hear the
challenges to other rulings or orders not specified in
the notice of appeal. But we have not applied this
“specify-all-orders” approach to notices of appeal from
a final judgment. Rather, we have held that an appeal
from a final judgment sufficiently preserves all prior
orders intertwined with the final judgment....
...
Moreover, we have also suggested that if a party
mistakenly designates the ruling from which he seeks to
appeal, the notice of appeal is liberally construed and
a jurisdictional defect will not be found if (1) there is
a manifest intent to appeal the unmentioned ruling or (2)
failure to designate the order does not mislead or
prejudice the other party.
In United States v. Lopez-Escobar, 920 F.2d 1241,
1244-45 (5th Cir. 1991), we stated that if both parties
briefed the issue that allegedly was not preserved on
appeal —— as is the case here —— and if the opposing
party suffers no prejudice, we have jurisdiction to hear
challenges to the unenumerated orders.43
The instant case is replete with factors advanced by the Trust Co.
court as militating in favor of exercising jurisdiction. First,
Appellants did appeal from an order that was designated as a final
judgment pursuant to Fed. R. Civ. P. 54(b). Second, despite Chief
Crum’s argument to the contrary, the issue of his qualified
immunity is “intertwined” with the issue of municipal liability in
42
104 F.3d 1478 (5th Cir. 1997).
43
Trust Co., 104 F.3d at 1485-86 (internal citations
omitted) (emphasis added).
18
this case, as the foregoing discussion44 demonstrates. Third,
Appellants certainly did exhibit a “manifest intent to appeal the
unmentioned [February 1999] ruling” when they attempted to cross-
appeal it to this court at the same time Chief Crum raised his
appeal. And, fourth, Chief Crum has suffered no prejudice by
Appellants’ failure to designate the February 1999 order expressly
in their notice of appeal, as is made abundantly clear by both
parties’ briefing of the issue. We therefore reject Chief Crum’s
arguments and turn to the merits of Appellants’ appeal of the
district court’s grant of summary judgment to Chief Crum based on
qualified immunity.
In its clear and careful opinion, the district court first
assured itself that the Appellants had actually stated an
appropriate claim against Chief Crum under 42 U.S.C. § 1983. The
court described the contours of a proper § 1983 supervisory
liability claim as follows:
A government official cannot be held liable under §
1983 on the basis of respondeat superior. Monell v.
Department of Soc. Servs., 436 U.S. 658, 694 n.58 (1978).
Instead, he can be held liable only if he was personally
involved in the acts causing the deprivation of an
individual’s constitutional rights, or if there was a
causal connection between his wrongful conduct and the
constitutional violation sought to be redressed.
Thompkins v. Belt, 828 F.2d 298, 304 (5th Cir. 1987);
Hinshaw v. Doffer, 785 F.2d 1260, 1263 (5th Cir. 1986).
Because Gros and Sikes only allege that Officer Rogers
44
I.e., the district court’s examination of Chief Crum’s
actions for deliberate indifference and objective reasonableness,
in the context of municipal liability and qualified immunity,
respectively.
19
directly violated their constitutional rights, the court
must determine whether Chief Crum...[is] liable as
Officer Rogers’ supervisor[].
To succeed on a claim for supervisory liability, a
plaintiff must show that (1) the supervisor engaged in
wrongful conduct, (2) a causal link exists between this
wrongful conduct and the violation of the plaintiff’s
rights, and (3) the wrongful conduct amounts to
deliberate indifference. See Smith v. Brenoettsy, 158
F.3d 908, 911-12 (5th Cir. 1998); see also Doe v. Taylor
Indep. Sch. Dist., 15 F.3d 443, 454 n.8 (5th Cir. 1994)
(en banc) (stating that deliberate indifference standard
applies to all cases alleging a constitutional
violation). A supervisor engages in wrongful conduct
when he either (1) fails to train or supervise his
subordinates or (2) implements a policy so deficient that
the policy itself is a repudiation of a citizen’s
constitutional rights. See Smith, 158 F.3d at 911-12;
Baker v. Putnal, 75 F.3d 190, 199 (5th Cir. 1996);
Thompkins, 828 F.2d at 304; Mathis v. Cotton,
1997 WL
457514, at *5 (N.D. Tex. Aug. 5, 1997) (Solis, J.).
Further, a supervisor acts with “deliberate indifference”
when he disregards a known or obvious consequence of his
action. Board of the County Comm’rs of Bryan County, Ok.
v. Brown, 520 U.S. 397, ___,
117 S. Ct. 1382, 1391
(1997).... For an official to act with deliberate
indifference, the official must both be aware of facts
from which the inference could be drawn that a
substantial risk of serious harm exists, and also draw
the inference. Smith, 158 F.3d at 912 (quoting [Farmer
v. Brennan, 511 U.S. 825, 837 (1994)]).45
The court concluded that the Appellants stated a § 1983 claim
against Chief Crum (1) when they alleged that through various
unconstitutional policies and decisions, he was deliberately
indifferent to their constitutional rights in improperly hiring
Officer Rogers and thereafter in failing adequately to supervise
and train him; and (2) when they alleged further that Chief Crum’s
deliberate indifference caused violations of their constitutional
45
Gros, 1999 WL 102800, at *1 (emphasis added).
20
rights.
Having established that the Appellants had stated a proper §
1983 claim, the court next considered Chief Crum’s defense of
qualified immunity, by engaging in the familiar two-pronged
inquiry: (1) Had Appellants alleged the violation of a clearly
established right, and, if so, (2) were Chief Crum’s actions
objectively reasonable in light of clearly established law at the
time of the conduct in question.46 In considering the first
question, the court concluded that Appellants had alleged the
violation of the clearly established rights to be free from false
arrests, unreasonable searches and seizure, sexual harassment, and
sexual assault, and that Chief Crum’s duties regarding those rights
were clearly established at the time of the alleged violations.
The court then considered the second question of the qualified
immunity test, whether Chief Crum’s actions were objectively
reasonable in light of clearly established law at the time of the
conduct in question. We have recounted the substance of that
analysis in our review of the court’s ruling on municipal
liability, above. Our de novo review of the parties’ arguments,
the record, and the district court’s analysis leads us to affirm
the district court’s conclusions that Chief Crum’s conduct at the
time of the alleged constitutional violations was objectively
reasonable in light of clearly established law at that time. Even
46
See Anderson v. Creighton, 483 U.S. 635, 639 (1987).
21
the claim that is perhaps the most compelling —— that Chief Crum
had actual knowledge of “unprofessional behavior” of GPPD officers
towards citizens, including the use of excessive force, but did
nothing to remedy the problem —— received explicit attention by the
district court:
Gros and Sikes contend that Chief Crum is liable because
he was aware that GPPD officers were acting
inappropriately toward citizens. They point to previous
complaints and incidents in which officers verbally and
physically abused citizens and used excessive force.
Plaintiffs have failed to identify the particular
deficiency in the officers’ training program. Instead,
Gros and Sikes merely assert that GPPD never taught
“civil rights” to its officers. This conclusory
contention is insufficient, however, to permit a
reasonable trier of fact to find that Chief Crum was
deliberately indifferent to their constitutional rights
through his failure to train officer Rogers. See [City
of Canton v. Harris, 489 U.S. 378, 391-92 (1989)] (noting
that lesser standard of fault and causation would open
defendants to unprecedented liability under § 1983 and
would result in de facto respondeat superior
47
liability).
Our de novo review of these issues confirms the correctness of the
district court’s sound analysis, and compels us to agree that, as
to all claims, the district court correctly concluded that Chief
Crum’s actions were objectively reasonable. We therefore affirm
the district court’s grant of qualified immunity for the § 1983
supervisory liability claims asserted against him.48
47
Gros, 1999 WL 102800, at *6 (internal citations to the
record omitted).
48
It is not altogether clear whether Appellants have
appealed the district court’s grant of summary judgment to
Lieutenant Bender based on qualified immunity. They do appear to
argue, obliquely, that Lieutenant Bender could be held liable for
22
III. Summary
We agree with the district court’s alternative analysis and
conclusion: Even if Chief Crum were found to be a policymaker for
the City, Appellants have failed to show that he acted with the
deliberate indifference necessary to impose § 1983 municipal
liability on the City. We also agree with the district court’s
related conclusion that Chief Crum’s actions with respect to the
hiring, training, and supervision of GPPD officers was objectively
reasonable, entitling him to qualified immunity on Appellants’ §
1983 supervisory liability claims against him. The district
court’s grants of summary judgment to the City and to Chief Crum i
his supervisory capacity are therefore
AFFIRMED.
a violation of their constitutional rights because of his failure
properly to investigate Gros’s claim against Officer Rogers. We
have considered their arguments, and we reach the same conclusion
as did the district court on this point: “A reasonable
person...could conclude that Lt. Bender and Chief Crum adequately
investigated Gros’ complaint in light of the clearly established
law at the time.” Gros, 1999 WL 102800, at *5. We therefore
affirm the district court’s grant of summary judgment to
Lieutenant Bender based on qualified immunity.
23
