The opinion
No. 99-30881
-1-
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-30881
Summary Calendar
JOYCE MOORE, individually and
on behalf of Joshua Moore,
Plaintiff-Appellee,
versus
STATE OF LOUISIANA, Etc., et al.,
Defendants,
RICHARD L. STALDER, individually and in
his capacity as Secretary of the Department
of Public Safety and Corrections; BENNY
HARRIS, individually and in his capacity as
warden, Louisiana Training Institute,
Defendants-Appellants.
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Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 99-CV-1108-B
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February 25, 2000
Before JOLLY, JONES, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Richard L. Stalder and Benny Harris appeal the district
court’s denial of their motion to dismiss Joyce Moore’s 42 U.S.C.
§ 1983 complaint on the basis of qualified immunity. We have
jurisdiction to review the district court’s denial to the extent
it turned on matters of law, including whether any issues of
*
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that this opinion should not be published and is not precedent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.
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disputed fact are material. Colston v. Barnhart, 146 F.3d 282,
284 (5th Cir.), cert. denied, 119 S. Ct. 618 (1998). Our review
is de novo. Lemoine v. New Horizons Ranch and Ctr., Inc., 174
F.3d 629, 634 (5th Cir. 1999). “To survive a motion to dismiss
in cases [in which] the qualified immunity defense is raised, a
plaintiff must state facts, which if proven, would defeat the
defense.” Babb v. Dorman, 33 F.3d 472, 475 n.5 (5th Cir. 1994).
Whether a public official is qualifiedly immune depends on
two inquiries. Harris v. Victoria Indep. Sch. Dist., 168 F.3d
216, 223 (5th Cir.), cert. denied, 120 S. Ct. 533 (1999). First,
a defendant is entitled to qualified immunity when a plaintiff
has failed to allege the violation of a clearly established
constitutional right by the defendant. Id. Second, a defense of
qualified immunity will succeed if the defendant’s conduct was
objectively reasonable at the time in light of clearly
established law. Id.
Moore’s complaint alleged that her son Joshua was subjected
to excessive force by an officer while Joshua was an inmate at
Louisiana Training Institute (LTI). Harris was the warden at LTI
when the incident occurred, and Stalder was the Secretary of
Louisiana’s Department of Public Safety and Corrections.
However, “[o]nly the direct acts or omissions of government
officials, not the acts of subordinates, will give rise to
individual liability under § 1983.” Alton v. Texas A&M Univ.,
168 F.3d 196, 200 (5th Cir. 1999). To hold supervisory officials
liable, a plaintiff must show that they “affirmatively
participate[d] in acts that cause[d] constitutional deprivation”
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or “implement[ed] unconstitutional policies that causally
result[ed] in plaintiff’s injury.” Baker v. Putnal, 75 F.3d 190,
199 (5th Cir. 1996).
Moore’s complaint did not sufficiently allege personal
participation by either Stalder or Harris in any constitutional
violation. The allegation that they may have imposed inadequate
discipline on the officer after the incident is not an allegation
that they participated in the constitutional violation argued in
the complaint, the use of force on Joshua. Although Moore’s
complaint states that Stalder had a policy of inadequately
training and supervising officers, there is no allegation that he
had any duty or opportunity to personally supervise or direct the
officer alleged to have used force on Joshua. Indeed, there is
no allegation at all of any policy, let alone one that was
constitutionally defective and “the moving force of the
constitutional violation” alleged in Moore’s complaint.
Thompkins v. Belt, 828 F.2d 298, 303 (5th Cir. 1987). Moore’s
conclusional allegations of supervisory involvement in the use of
excessive force on Joshua are insufficient to state any claim
against Stalder and Harris under § 1983. See, e.g., Morrison v.
City of Baton Rouge, 761 F.2d 242, 244 (5th Cir. 1985).
Accordingly, the district court erred in declining to find the
two supervisors immune.
On appeal, Moore argues that additional discovery might
allow her to make better claims against Stalder or Harris.
However, qualified immunity protects defendants from discovery
unless “the plaintiff’s pleadings assert facts which, if true,
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would overcome the defense of qualified immunity.” Wicks v.
Mississippi State Employment Servs., 41 F.3d 991, 994 (5th Cir.
1995). Because Moore’s complaint did not contain facts that
would overcome the defense of qualified immunity, exposing
Stalder and Harris to the burdens of discovery would be improper.
See id. at 994-95.
For the foregoing reasons, we REVERSE the district court’s
denial of qualified immunity to Stalder and Harris, and we REMAND
with direction that the district court enter its order dismissing
the § 1983 claims against the appellants herein.