The opinion
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 97-60422
Summary Calendar
_____________________
ALLAN STEWART LIPSCHITZ,
Plaintiff-Appellant,
versus
JOE PRICE, Sheriff, Sheriff of Harrison
County, Mississippi; HARRISON COUNTY;
MIKE FAYARD; FIDELITY AND DEPOSIT COMPANY
OF MARYLAND,
Defendants-Appellees.
_______________________________________________________
Appeal from the United States District Court for
the Southern District of Mississippi
_______________________________________________________
July 30, 1998
Before REAVLEY, DAVIS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Allan Stewart Lipschitz brought a 42 U.S.C. § 1983 suit
alleging claims of cruel and unusual punishment, denial of due
process, exposure to risk with deliberate indifference, as well as
state law negligence against appellees Harrison County, Mississippi
(the County); Harrison County, Mississippi, Sheriff Joe Price and
*
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this opinion should not be published and is not precedent except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.
Deputy Sheriff Mike Fayard. Lipschitz claimed that while
incarcerated in the Harrison County Jail, he was required to climb
to a point thirty feet above the floor to perform work, and that
while performing the work he fell and was seriously injured.
The district court dismissed the claims against Price and
Fayard finding that Lipschitz knowingly and voluntarily waived any
§ 1983 claim including his right to hold appellees liable for any
injuries he received while participating in the work program. The
court dismissed the claims against the County as “the claims
against the Sheriff, whose edicts or acts may fairly be said to
represent official policy for which the County may be held
responsible under Section 1983 are thus also waived by the
plaintiff.” Lipschitz complains on appeal that the district court
erred in granting summary judgment to appellees. We affirm the
summary judgment but for different reasons than those articulated
by the district court.
Harrison County Sheriff’s Department has a work program in
which selected inmates may serve as trustees thereby receiving more
freedom, as well as other benefits not otherwise enjoyed by the
general inmate population. Lipschitz executed an Inmate Request
form seeking “to work in maintenance or any position available.”
Lipschitz was granted trusty status pursuant to this request. In
order to begin his work as a trustee, Lipschitz was required to
sign a one-page “Absolute Release” which provides that:
2
In consideration of the opportunity to participate in the
program and the sentence reduction earned thereby, I do
hereby remise, release, forever discharge and covenant to
hold harmless the Harrison County, Sheriff’s Department,
the Harrison County Board of Supervisors, and Sheriff Joe
Price, their representatives . . . from any and all
actions, causes of action, claims, demands, damages,
costs, expenses, loss of services, loss of consortium,
loss of companionship, injuries, property claims, death
claims, wrongful death claims, medical payments, and
compensation of every kind, type, and character
whatsoever, on account of or as a result of or in any way
arising out of any . . . accidents, or injuries which may
be sustained by me as a result of or during the course of
my participation in the work outlined above.
We review a grant of summary judgment de novo applying the
same standard as the district court. Summary judgment is proper
when, viewing the facts in the light most favorable to the non-
movant, no genuine issues of material fact exist that would
necessitate a trial.1 Appellees argue that the district court’s
grant of summary judgment should be affirmed on three grounds: (1)
Lipschitz voluntarily and knowingly signed the release and waiver
agreeing to hold harmless appellees for any injuries sustained
while participating in the work program; (2) Lipschitz failed to
show that appellees subjected Lipschitz to cruel and unusual
punishment; (3) Price and Fayard are entitled to qualified immunity
from Lipschitz’s state tort claims; and (4) the County is entitled
to sovereign immunity.
Voluntary and Knowing Release.
1
Lemelle v. Universal Mfg. Corp., 18 F.3d 1268, 1272 (5th Cir.
1994).
3
Under Mississippi law, whether or not Lipschitz’s release was
knowingly and voluntarily executed is a question of fact, not law.2
Issues of good faith, voluntariness, and duress are questions
properly submitted to a jury.3 We believe that Lipschitz, in his
deposition, raised an issue of his voluntary execution of the
release and decline to affirm the judgment on that ground.
Appellees contend, and the district court held, that Lipschitz
voluntarily and knowingly signed the absolute release thereby
waiving his rights to pursue legal claims for violations of federal
and state law. Initially, the district court determined that the
record lacked testimony regarding whether Lipschitz voluntarily and
knowingly entered into the release. The court also initially found
insufficient the evidence concerning what procedures and
circumstances surrounded Lipschitz’s obtaining and signing the
release.
Appellees offered into evidence the affidavit and testimony of
Bruce Carver in response to the court’s findings. In his
affidavit, Carver stated that Lipschitz requested to participate in
the work program two days after he was sentenced and that Lipschitz
signed and submitted the Inmate Request Form. Carver claimed that
he advised Lipschitz that “if he was accepted as a Trusty, and was
allowed to participate in this program, that he would have to read
2
Smith v. Sneed, 638 So.2d 1252, 1259 (Miss. 1994); City of
Meridian v. Godwin, 185 So.2d 433, 438 (Miss. 1966).
3
Smith, 638 So.2d at 1261.
4
and sign a Release form, agreeing that in the event that he should
be injured in the course of his duties as a Trusty, that he would
have no claim or lawsuit. . . .” Carver did not actually witness
Lipschitz sign the release, but maintained certainty that Lipschitz
understood the nature of the release.
Lipschitz disputes the appellees and district court. He
contends that although he briefly read the release, he obtained and
signed it in a manner that left him little room for negotiation or
consultation. He was given the release to sign as he walked out
the door to his new assignment. He suggests that he did not truly
understand the significance of signing the release. In his
deposition, Lipschitz testified that “they shoved this little piece
of paper in front of me and told me to sign it if I wanted to be a
trusty, so I signed it,” and that he understood that in return for
signing the release he was getting “freedom.”
In Smith v. Sneed, Smith filed suit against the defense
attorney who represented him in a criminal prosection, in which
Smith pled guilty to manslaughter. Smith alleged that the attorney
was negligent in failing to obtain an autopsy report that showed
that the alleged victim died of natural causes. Upon confirmation
of the autopsy report, Smith was ordered to be released from prison
but first was required to sign an absolute release of liability.
The trial court determined that Smith had no cause of action
because he had “freely and voluntarily” signed the release
5
relieving his attorney of any liability. The Mississippi Supreme
Court reversed, holding that whether or not Smith freely and
voluntarily executed the release was an issue appropriate for a
jury. Smith did not dispute that he signed the release, but his
deposition left open the possibility that the release was not given
voluntarily.
Similarly, Lipschitz’s deposition leaves open the same
possibility. A reasonable jury could conclude that Lipschitz did
not knowingly and voluntarily sign the release. Mississippi law
will not allow enforcement of a release if any element of
“unconscionable advantage is connected with the transaction. And
in passing on the validity of such release, when assailed, all
surrounding conditions should be fully developed, and the relative
attitudes of the contracting parties clearly shown. So that the
jury, in the clear light of the whole truth, may rightly decide
which story bears the impress of verity.”4
Section 1983 Claims
Summary judgment is proper on Lipschitz’s § 1983 claim. He
alleged that the conditions surrounding his work requirement
constituted cruel and unusual punishment in violation of the Eighth
Amendment and the deprived him of his due process rights under the
Fourteenth Amendment.
4
638 So.2d at 1261-62.
6
The Supreme Court has held that in order for the conduct of
which Lipschitz bases his complaint to be cruel and unusual, it
“must involve more than ordinary lack of due care for the
prisoner’s interest or safety. . . . It is obduracy and
wantonness, not inadvertence or error in good faith, that
characterize the conduct prohibited by the Cruel and Unusual
Punishments Clause . . .”5 Lipschitz failed to submit proof that
Fayard and Price acted with deliberate indifference.6 Fayard and
Price may have been negligent in not providing more precise
instructions as to the specifics of Lipschitz’s work assignment,
but the record does not present an issue that they acted wantonly
as required to establish a violation of the Eighth Amendment.
In addition, it is well established that “the Due Process
Clause is simply not implicated by a negligent act of an official
causing unintended loss of or injury to life, liberty, or
property.”7 The Supreme Court has asserted that the lack of due
care suggests no more than a failure to measure up to the conduct
of a reasonable person, but to hold that an injury caused by such
conduct is a deprivation within the meaning of the Fourteenth
5
Wilson v. Seiter, 501 U.S. 294, 299 (1991)(emphasis in
original).
6
Id. at 303-304.
7
Daniel v. Williams, 474 U.S. 327, 328 (1986).
7
Amendment trivializes the principle of due process law.8
Lipschitz’s § 1983 claim based on cruel and unusual punishment and
deprivation of due process rights must fail.
Lipschitz also claimed that Price established a policy
and/or custom wherein deputies were encouraged or required to make
inmates perform work, and that Price knew of the nature of the work
but failed to provide adequate safety procedures for the inmates
performing the work at the jail. Under § 1983, a supervisory
official such as Price cannot be held vicariously liable for his
subordinates’ actions unless (1) the supervisor affirmatively
participated in acts that caused constitutional deprivations or (2)
the supervisor created unconstitutional policies that causally
resulted in Plaintiff’s injury.9 The record does not show that
Price affirmatively participated in the work program as it relates
to Lipschitz. Further, any negligence with a causal nexus to
Lipschitz’s accident was in the execution of the particular work
assignment, not in the creation of the work program itself.
State Tort Claims
Mississippi law provides appellees immunity from Lipschitz’s
state tort claims. Section 11-46-9 of the Mississippi Code exempts
governmental entities and their employees from liability on claims
based on specified circumstances including injury arising out of
8
Id. at 332.
9
Thibodeaux v. Arceneaux, 768 F.2d 737, 739 (5th Cir. 1985).
8
any work performed by convicted persons;10 claims arising from an
inmate of any jail;11 or claims “based upon the exercise or
performance or the failure to exercise or perform a discretionary
function or duty on the part of a governmental entity or employee
thereof, whether or not the discretion be abused.”12 The work
program affording selected inmates the opportunity to be a trusty
is a purely discretionary program. The operations of the program
is dependent upon the officer’s judgment and discretion. Because
Fayard and Price were acting within their discretionary powers,
they are entitled to immunity from the state tort claims.
Finally, sovereign immunity serves as an absolute bar to a
tort cause of action of negligence against a political subdivision
of Mississippi if the claim arose prior to October 1, 1993.13
Lipschitz’s accident occurred on December 31, 1991. The County is
immune from suit. The district court’s grant of summary judgment
is
AFFIRMED.
10
11-46-9(1)(n).
11
11-46-9(1)(m).
12
11-46-9(1)(d).
13
11-46-5.
9