noting that Prison Rape Elimination Act had no relevance in case where prisoner alleged Eighth Amendment violations because ”[e]ven if [Plaintiff] is correct that [[Defendant’s] policies fail to ’adhere to those national standards,’ [Plaintiff] is not pursuing a cause of action under that statute.”
How later courts described this case
- noting that Prison Rape Elimination Act had no relevance in case where prisoner alleged Eighth Amendment violations because ”[e]ven if [Plaintiff] is correct that [[Defendant’s] policies fail to ’adhere to those national standards,’ [Plaintiff] is not pursuing a cause of action under that statute.”
- A state actor’s failure to alleviate ‘a significant risk that he should have perceived but did not,’ while ‘no cause for commendation,’ does not rise to the level of deliberate indifference.”
- “[I]n suits brought by detained parolees, both the Fourteenth and Eighth Amendment standards apply.”
Written by the judges who cited it.
The opinion
Case: 14-60282 Document: 00512883402 Page: 1 Date Filed: 12/29/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-60282 United States Court of Appeals
Fifth Circuit
FILED
AMBER ARD, December 29, 2014
Lyle W. Cayce
Plaintiff - Appellant Clerk
v.
STEVE RUSHING, Individually and in his official capacity as Sheriff of
Lincoln County, Mississippi; LINCOLN COUNTY, MISSISSIPPI,
Defendants - Appellees
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 5:13-CV-249
Before KING, JOLLY, and COSTA, Circuit Judges.
PER CURIAM:*
This action arises out of Plaintiff-Appellant Amber Ard’s June 2010
incarceration in the Lincoln County Jail, during which, according to Ard,
former jailer Timothy Miller sexually assaulted her. Ard brought suit alleging
various claims arising from this incident against Sheriff Steve Rushing—in his
individual and official capacities—and against Lincoln County, Mississippi.
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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No. 14-60282
Ard appeals: (1) the district court’s dismissal of her state law negligence claims;
(2) the district court’s grant of summary judgment as to her claims pursuant
to 42 U.S.C. §§ 1983, 1985, and 1986; and (3) the district court’s denial of her
motion requesting discovery sanctions and seeking to reopen discovery. For
the reasons below, we affirm the judgment of the district court.
I. Factual and Procedural Background
A. Factual Background
Plaintiff-Appellant Amber Ard was arrested on June 9, 2010 for a drug-
related probation violation. That day, she was booked at the Lincoln County
Jail (“LCJ”) and was taken upstairs to an area of the LCJ temporarily being
used to house female inmates. Female inmates are typically housed on the
first floor of the LCJ. However, at the time Ard was incarcerated, the female
housing area on the first floor was being renovated. Sheriff Steve Rushing,
who oversees the LCJ, chose to temporarily house all female inmates upstairs
during that time.
To enter this temporary female housing area, one must go up a set of
stairs, through a key-locked door, down a hallway, through another key-locked
door, through a room, and through a third key-locked door. All three doors
were kept locked at all times, although the LCJ jailers had access to keys for
these doors. The female housing area was also equipped with an intercom for
inmates to contact jailers in the control room when a problem arose. In
addition, the hallway had a camera providing a live video feed, which played
on monitors in the upstairs guard tower and in the downstairs control room.
The upstairs guard tower is usually staffed with a jailer on each shift, as is the
control room. There were no cameras in the area immediately surrounding the
individual female cells.
During Ard’s detention, there were signs posted just outside both the
temporary female housing area and the permanent female housing area,
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stating: “NO MALE JAILERS ARE TO ENTER THE FEMALE’S CELL WITH
OUT [sic] A FEMALE JAILER OR DISPATCHER WITH THEM. NO
EXCEPTIONS!!!” This policy was not written elsewhere. Jailers were not
required to sign any ledger or list to access the female housing area. Rather,
Rushing relied on the guards monitoring the cameras to inform him, his chief
deputy, or the warden, if there was a violation of the policy prohibiting male
jailers from entering female inmates’ cells unaccompanied. Rushing could not
recall whether he had ever disciplined a jailer for violating that policy.
Rushing contends that there is typically at least one female jailer working per
shift, although there is some evidence in the record that female jailers were
not always available.
Ard contends that in the early morning hours of June 11, 2010, prior to
the lights being turned on in the female housing unit, jailer Timothy Miller—
a shift supervisor—appeared in her cell at the foot of her bed. When she saw
him, she jumped up and asked him what he was doing in her cell. Miller offered
Ard cigarettes, which she accepted. As Miller was leaving her cell, according
to Ard, he asked her what she would do for him in return for the cigarettes.
Ard responded that he should “go home and get that from [his] wife.” Miller
then left the cell. Miller purportedly appeared in her cell the following
morning, again before the lights were turned on. Miller made sexual advances
toward Ard and asked her to have sex with him. According to Ard, she refused,
and Miller left. Later that morning, Miller allegedly returned to Ard’s cell,
took her by the arm, forced her into a cell next door and attempted to make
Ard perform oral sex on him; Ard resisted. Miller then shoved Ard down,
opened her legs, and forcibly penetrated her. Ard reported the incident the
following evening. When Rushing learned of the incident, he contacted the
Mississippi Bureau of Investigation (“MBI”), and an investigation ensued.
Soon after, Rushing fired Miller for violating the policy prohibiting male jailers
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from entering a female’s cell unaccompanied by a female jailer or dispatcher.
Miller ultimately pleaded guilty to a charge of sexual contact with an inmate,
though he maintains that his sexual contact with Ard was consensual. Miller
has also stated that, on the date of the alleged rape, he was called to check the
toilets in the female housing area, attempted to locate a female jailer to
accompany him, but could not locate one.
Ard contends that Rushing and Lincoln County were aware of prior
instances of sexual misconduct involving Miller. First, Ard points to an
allegation by former LCJ inmate Sonya Smith (“S. Smith”) that she was
sexually assaulted by Miller in October 2006—several weeks after Rushing
was appointed as Sheriff of the LCJ. S. Smith alleged that Miller entered her
cell, unaccompanied by a female guard, and sexually assaulted her. S. Smith
also alleged that Miller had sexual relationships with other female inmates.
The LCJ’s acting major learned of S. Smith’s allegations and contacted the
MBI. The MBI conducted an investigation and informed the acting major that
there was “nothing to” the allegations; no charges resulted. 1 Rushing contends
that he has no recollection of the incident, which occurred several weeks after
he was appointed as Sheriff of the LCJ. However, there is evidence showing
that an MBI investigator met with Rushing regarding the allegations on
October 31, 2006. S. Smith has also stated that she met with Rushing
regarding her allegations.
Second, in 2009, there was a jailhouse rumor that Miller had asked a
female inmate to show him her breasts. This rumor prompted an investigation
by the LCJ’s chief deputy, who interviewed each female inmate at the LCJ.
The rumor could not be substantiated, as no female inmate had heard the
1 According to the MBI’s investigation report, several female inmates stated to the
MBI that they had heard that Miller had sexual encounters with various inmates. However,
these rumors could not be corroborated.
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statement either first or secondhand. Miller denied the rumor as well.
Nonetheless, as the result of the rumor, Rushing posted the signs regarding
male jailer access to the cells of female inmates in November 2009.
Finally, Ard relies on allegations of sexual assault against Miller by
another former inmate, Crystal Gayle Smith (“C.G. Smith”). On August 16,
2012, C.G. Smith filed a lawsuit against Rushing, Lincoln County, and Miller,
based on those allegations. C.G. Smith contends that she was raped by Miller
in November 2009 while she was an inmate at the LCJ. She states that she
provided a statement to the District Attorney for Pike and Lincoln counties
about the incident. According to Truett Simmons, an investigator with the
District Attorney’s Office for Lincoln, Pike, and Walthall counties, he took a
statement from C.G. Smith regarding the incident on August 26, 2010. There
is no evidence that C.G. Smith disclosed her allegations to anyone else prior to
providing this statement, and Rushing contends that he was not aware of any
such allegations prior to the suit being filed.
B. Procedural Background
Ard filed this case in Mississippi state court on November 23, 2011
against Miller, in his individual and official capacities, Rushing, in his
individual and official capacities, and Lincoln County. Her complaint asserts
Section 1983 claims for violations of the Fourth, Fifth, and Fourteenth
Amendments, a conspiracy claim under Section 1985(3), and negligence claims
under Mississippi state law. Defendants removed this action to the United
States District Court for the Southern District of Mississippi.
Rushing and Lincoln County moved to dismiss Ard’s state law claims.
The district court granted the motion, reasoning that those claims were barred
by the Mississippi Tort Claims Act. Rushing then filed a motion for summary
judgment with respect to the claims remaining against him in his individual
capacity, asserting qualified immunity. The district court granted the motion,
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concluding that “the factual predicate which Ard has presented does not create
an issue of fact on the question of whether Rushing was deliberately indifferent
to a substantial risk of harm.” The court also determined that Ard had waived
her claim under Section 1985(3) as against Rushing in his individual capacity.
Lincoln County and Rushing, in his official capacity, moved for summary
judgment on the remaining Section 1983 and 1985 claims. Before the district
court ruled on the motion, Ard also moved for sanctions and to reopen discovery
based on Defendants’ alleged failure to timely produce the August 2010
statement from C.G. Smith. The district court resolved both motions in a
memorandum opinion and order. The court granted the motion for summary
judgment as to the Section 1983 claims, reasoning that Ard “failed to present
evidence that any official policy was the moving force behind” any
constitutional violation. The court also granted the motion as to the Section
1985(3) claim, as Ard failed to allege discriminatory animus on the part of
Defendants. Finally, the district court denied Ard’s motion for sanctions, as
there was “nothing to indicate that Sheriff Rushing, Lincoln County or their
counsel was aware of [C.G. Smith’s August 2010] statement or had been
provided a copy of that statement prior to November 2013, when counsel
received a copy of the statement from Miller’s attorney in the [C.G.] Smith
lawsuit.”
The district court entered partial final judgment as to the claims against
Rushing and Lincoln County. Ard timely appeals.
II. Standard of Review
We review de novo a district court’s order granting a defendant’s motion
for summary judgment, applying the same standard as did the district court.
See Adams v. Travelers Indem. Co. of Conn., 465 F.3d 156, 163 (5th Cir. 2006).
“Summary judgment is appropriate ‘if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment
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No. 14-60282
as a matter of law.’” Johnston & Johnston v. Conseco Life Ins. Co., 732 F.3d
555, 561 (5th Cir. 2013) (quoting Fed. R. Civ. P. 56(a)). We view the evidence
in the light most favorable to the non-moving party. United Fire & Cas. Co. v.
Hixson Bros., Inc., 453 F.3d 283, 285 (5th Cir. 2006).
With respect to claims brought under 42 U.S.C. § 1983, government
officials performing discretionary functions are entitled to qualified immunity,
i.e., they “‘generally are shielded from liability for civil damages insofar as
their conduct does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known.’” McClendon v. City of
Columbia, 305 F.3d 314, 322 (5th Cir. 2002) (en banc) (quoting Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982)). “[W]hen a defendant invokes the defense
of qualified immunity, the burden is on the plaintiff to demonstrate the
inapplicability of the defense.” Kitchen v. Dallas Cnty., 759 F.3d 468, 476 (5th
Cir. 2014). “The two-part inquiry into qualified immunity is first ‘whether a
constitutional right would have been violated on the facts alleged,’ and second
‘whether the right was clearly established’ at the time of violation. Id. (quoting
Saucier v. Katz, 533 U.S. 194, 200 (2001)). Courts are “permitted to exercise
their sound discretion in deciding which of the two prongs of the qualified
immunity analysis should be addressed first in light of the circumstances in
the particular case at hand.” Pearson v. Callahan, 555 U.S. 223, 236 (2009).
“The denial of Rule 37 sanctions is reviewed only for abuse of discretion.”
Johnson v. Sears Roebuck & Co., 66 F. App’x 523, No. 02-31169, 2003 WL
21016128, at *1 (5th Cir. Apr. 9, 2003) (per curiam) (unpublished); cf. Smith &
Fuller, P.A. v. Cooper Tire & Rubber Co., 685 F.3d 486, 488 (5th Cir. 2012) (“A
district court’s imposition of sanctions pursuant to Rule 37(b) is reviewed for
an abuse of discretion.”). This court similarly reviews a district court’s denial
of a motion to reopen discovery for abuse of discretion. See Marathon Fin. Ins.,
Inc., RRG v. Ford Motor Co., 591 F.3d 458, 469 (5th Cir. 2009). “Th[is]
7
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standard of review poses a high bar; a district court’s discretion in discovery
matters will not be disturbed ordinarily unless there are unusual
circumstances showing a clear abuse.” Id. (internal citation and quotation
marks omitted). Thus, “[t]his court will disregard a district court’s discovery
error unless that error affected the substantial rights of the parties.” Id.
(internal citation and quotation marks omitted).
III. Discussion
A. Waiver
Ard has waived: (1) her state law claims; (2) her Section 1983 claims
against Sheriff Rushing in his official capacity and against Lincoln County;
and (3) her Section 1985(3) claim.
With respect to her state law claims, Ard only alludes to them in her
briefing on appeal. She mentions them in her statement of the issues, where
she asks: “Did the District Court err in adjudicating that the Sheriff of Lincoln
County was individually immune from charges concerning his failure to comply
with federal [sic] and concerning his liability on state law claims?” (emphasis
added). Nonetheless, “[i]t is not enough to merely mention or allude to a legal
theory.” United States v. Scroggins, 599 F.3d 433, 446 (5th Cir. 2010) (internal
quotation marks omitted). “At the very least, [an appellant must] clearly
identify[] a theory as a proposed basis for deciding the case—merely intimating
an argument is not the same as pressing it.” Id. at 447 (internal citation,
quotation marks, and brackets omitted). Because Ard makes no substantive
arguments regarding the dismissal of her state law claims, she has waived any
challenge to those claims on appeal.
With respect to her Section 1983 claims against Sheriff Rushing in his
official capacity and against Lincoln County, Ard fails to put forward any
8
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specific theory as to municipal liability. 2 She discusses neither the standard
for municipal liability under Section 1983 nor caselaw relevant to such claims.
Merely mentioning Lincoln County throughout her brief is insufficient.
Accordingly, these claims too are waived. See Scroggins, 599 F.3d at 447
(“[A]mong other requirements to properly raise an argument, a party must
ordinarily identify the relevant legal standards and any relevant Fifth Circuit
cases.” (internal citation and quotation marks omitted)).
Finally, Ard has waived her claim pursuant to 42 U.S.C. § 1985(3), as
she never addressed that claim in her briefing before the district court. See
LeMaire v. La. Dep’t of Transp. & Dev., 480 F.3d 383, 387 (5th Cir. 2007)
(“[A]rguments not raised before the district court are waived and cannot be
raised for the first time on appeal.”).
B. Section 1983 Claims Against Rushing Individually
We first address under which constitutional amendment Ard’s claims
should be analyzed. In its first summary judgment order, the district court
determined that Ard’s claims “flow from the Eighth Amendment’s prohibition
against cruel and unusual punishment.” The district court then reversed
course in its second summary judgment order, concluding that because Ard
was in custody awaiting a probation revocation hearing, her claims should
instead be analyzed under the Fourteenth Amendment. 3
In Hare v. City of Corinth, 74 F.3d 633 (5th Cir. 1996) (en banc), we
concluded that “[t]he constitutional rights of a convicted state prisoner spring
from the Eighth Amendment’s prohibition on cruel and unusual punishment,”
2 The claims against Rushing in his official capacity are treated as claims against
Lincoln County. See Brooks v. George Cnty., 84 F.3d 157, 165 (5th Cir. 1996) (“Brooks’s suit
against Sheriff Howell in his official capacity is treated as a claim against George County.”).
3 The district court did not address, and Ard has not briefed below or on appeal, the
purported Fourth and Fifth Amendment claims listed in her complaint. Therefore, those
claims have been waived. See Scroggins, 599 F.3d at 446–47.
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while “[t]he constitutional rights of a pretrial detainee . . . flow from both the
procedural and substantive due process guarantees of the Fourteenth
Amendment.” Id. at 639. A probationer awaiting a revocation hearing, such
as Ard, does not fit neatly within this dichotomy. However, we addressed a
similar scenario in Hamilton v. Lyons, 74 F.3d 99 (5th Cir. 1996), concluding
that in suits brought by detained parolees, both the Fourteenth and Eighth
Amendment standards apply. See id. at 106 & n.8.
In any event, the analysis under the Fourteenth and Eighth
Amendments is identical in this case. In Hare, we held that where “a pretrial
detainee’s claim is based on a jail official’s episodic acts or omissions”—as
opposed to “general conditions, practices, rules, or restrictions of pretrial
confinement”—the Fourteenth Amendment standard is the same as that under
the Eighth Amendment. Hare, 74 F.3d at 643. That is, “liability . . . cannot
attach unless the official had subjective knowledge of a substantial risk of
serious harm to a pretrial detainee but responded with deliberate indifference
to that risk.” Id. at 650. 4 The case at hand is clearly one that involves an
episodic act or omission—i.e., Miller’s alleged sexual assault on Ard. See Scott
v. Moore, 114 F.3d 51, 53 (5th Cir. 1997) (en banc) (“[T]he actual harm of which
[plaintiff] complains is the sexual assaults committed by [defendant] during
the one eight-hour shift—an episodic event perpetrated by an actor interposed
between [plaintiff] and the city, but allegedly caused or permitted by the
aforesaid general conditions.”). Therefore, the deliberate indifference standard
applies here. 5
4 In cases challenging general conditions of confinement, the inquiry is instead
whether the pretrial detainee was “subjected to conditions or restrictions that are not
reasonably related to a legitimate governmental purpose.” Id. at 640.
5 Furthermore, at oral argument, Ard’s counsel conceded that this is the appropriate
standard.
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Ard’s Section 1983 allegations are premised on a “failure to protect”
theory. To establish such a claim, Ard “must show that [s]he [was]
incarcerated under conditions posing a substantial risk of serious harm and
that prison officials were deliberately indifferent to h[er] need for protection.”
Neals v. Norwood, 59 F.3d 530, 533 (5th Cir. 1995). Because Ard cannot make
this showing, this case can be resolved on the first qualified immunity prong—
i.e., “whether a constitutional right would have been violated on the facts
alleged.” Saucier, 533 U.S. at 200.
“Deliberate indifference is an extremely high standard to meet.”
Domino v. Tex. Dep’t of Criminal Justice, 239 F.3d 752, 756 (5th Cir. 2001).
Mere negligence on the part of prison officials is insufficient. Hare, 74 F.3d at
645–46. “A state actor’s failure to alleviate ‘a significant risk that he should
have perceived but did not,’ while ‘no cause for commendation,’ does not rise to
the level of deliberate indifference.” McClendon, 305 F.3d at 326 n.8 (quoting
Farmer v. Brennan, 511 U.S. 825, 837 (1994)). Accordingly, “[a] prison official
acts with deliberate indifference ‘only if [(A)] he knows that inmates face a
substantial risk of serious bodily harm and [(B)] he disregards that risk by
failing to take reasonable measures to abate it.’” Gobert v. Caldwell, 463 F.3d
339, 346 (5th Cir. 2006) (quoting Farmer, 511 U.S. at 847). Even assuming
Miller’s presence in the LCJ constituted a substantial risk of serious bodily
harm to Ard, Ard has failed to put forward sufficient evidence establishing that
Rushing had subjective knowledge of such a risk. The district court correctly
concluded that the alleged prior incidents of misconduct on the part of Miller
could not have placed Rushing on notice that Miller posed a substantial danger
to female inmates.
Ard first relies on allegations from S. Smith that Miller sexually
assaulted her in October 2006. Although Rushing contends that he has no
recollection of the incident, Ard has pointed to facts raising a genuine dispute
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as to Rushing’s knowledge. However, this dispute is not material, as an
independent body—the MBI—concluded that there was “nothing to” these
allegations. We note that the MBI’s investigation—which resulted in an
informal, one-page report—may have been less than rigorous. But even
assuming Rushing was negligent in relying on such an investigation, the MBI’s
report contained only uncorroborated allegations of Miller’s misconduct, and
thus cannot establish that Rushing had subjective knowledge of a substantial
risk of serious harm.
For similar reasons, the jailhouse rumor that Miller asked a female
inmate to show him her breasts also fails to raise a genuine issue of material
fact as to whether Rushing was deliberately indifferent. This rumor prompted
an internal investigation—involving interviews of each female inmate at the
LCJ. It too was found to be unsubstantiated as each female inmate denied
hearing any such comment from Miller. Therefore, this incident also would
not have caused Rushing to believe that Miller posed a threat to female
inmates.
With respect to Miller’s alleged sexual assault on C.G. Smith, there is no
evidence suggesting that Rushing was aware of this incident prior to Miller’s
alleged assault on Ard. These allegations became public when C.G. Smith filed
a lawsuit stemming from the incident on August 16, 2012; Rushing contends
he had never heard of this allegation until this time. There is no evidence
supporting Ard’s contention that “prior to June of 2010, [C.G.] Smith made the
fact of this rape known to Sheriff Rushing.” Rather, C.G. Smith only speculates
in her affidavit that Miller’s misconduct “happened too often for the Sheriff,
Steve Rushing, not to have known about it.” Ard also points to C.G. Smith’s
statement, also in that affidavit, that she “gave a statement to the District
Attorney for Pike and Lincoln Counties about Miller’s sexual assault on me.”
But there is no evidence suggesting that the District Attorney ever informed
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Rushing of these allegations. Even if a reasonable jury could make this
inference, the evidence shows that C.G. Smith did not inform the District
Attorney’s Office of her allegations until August 2010—several months after
Ard’s alleged assault. Therefore, these allegations would have no bearing on
Rushing’s knowledge prior to the assault.
These incidents were therefore insufficient to place Rushing on notice
that Miller posed a substantial risk of serious harm to female inmates such as
Ard. See Farmer, 511 U.S. at 837 (stating that for an official to be liable under
the deliberate indifference standard, he “must both be aware of facts from
which the inference could be drawn that a substantial risk of serious harm
exists, and he must also draw the inference”). Rushing may have been
negligent by continuing to employ Miller after two rumors of sexual misconduct
had been levied against him. However, because the investigations of these two
allegations did not result in any finding of wrongdoing on Miller’s part, we
cannot say his conduct rose to the level of deliberate indifference. The
conclusion that Rushing lacked deliberate indifference is bolstered by evidence
that, in light of the rumors, he took steps to prevent male jailers from having
one-on-one access to female inmates. Rushing, for example, instituted a policy
banning male jailers from entering the female housing area without an
accompanying female jailer or dispatcher, and typically scheduled at least one
female jailer per shift. Although there is evidence suggesting that these efforts
were not foolproof, this does not warrant a finding of deliberate indifference
given Rushing’s lack of subjective knowledge that Miller posed a danger to
female inmates. See Scott, 114 F.3d at 55 (“At best, the evidence proffered by
Scott may be construed to suggest that the jail could have been managed
better, or that the city lacked sufficient prescience to anticipate that a well-
trained jailer would, without warning, assault a female detainee. In either
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event, they do not reflect objective deliberate indifference to Scott’s
constitutional rights.”). 6
Accordingly, the district court properly granted summary judgment as to
Ard’s Section 1983 claims. 7
C. Claims Under Sections 1985(2) and 1986
In her briefing before us and below, Ard has discussed claims under 42
U.S.C. §§ 1985(2) and 1986. However, she did not allege those claims in her
complaint. Even assuming the claims are not precluded on this basis, 8 they
fail on the merits.
Section 1985(2) prohibits two categories of conspiracies: (1) “conspiracies
directed at the right of participation in federal judicial proceedings,” Montoya
6 Moreover, Rushing’s failure to arrest Miller for neglecting to register as a sex
offender after his conviction has no bearing on whether Rushing acted with deliberate
indifference prior to the assault. Nor does the Prison Rape Elimination Act of 2003 have any
relevance to this inquiry. Even if Ard is correct that Rushing’s policies fail to “adhere to those
national standards,” Ard is not pursuing a cause of action under that statute.
7 To the extent Ard attempts to premise her Section 1983 claims on a “failure to train
or supervise” theory, that argument has been waived on appeal. Ard mentions this theory
briefly in her appellate briefing, noting Rushing’s and Lincoln County’s lack of specific
training policies or manuals, and conclusorily stating that “Rushing failed to supervise or
train Miller, that this failure caused the violation of [Ard’s] rights, and that this failure
amounted to deliberate indifference.” This is insufficient to properly raise an argument on
appeal. See Scroggins, 599 F.3d at 446–47 (“It is not enough to merely mention or allude to
a legal theory. . . . [M]erely intimating an argument is not the same as pressing it.” (internal
quotation marks, citation, and brackets omitted)). In any event, this theory would fail on the
merits for the same reasons as Ard’s “failure to protect” theory. See Estate of Davis v. City of
N. Richland Hills, 406 F.3d 375, 381–82 (5th Cir. 2005) (“To satisfy the deliberate
indifference prong [under a failure to train or supervise theory], a plaintiff usually must
demonstrate a pattern of violations and that the inadequacy of the training is obvious and
obviously likely to result in a constitutional violation.” (internal quotation marks and citation
omitted)).
8 Compare Baker v. Exxon Chem. Ams., 68 F.3d 467, No. 95-30169, 1995 WL 581611,
at *4 (5th Cir. Aug. 29, 1995) (per curiam) (unpublished) (“Baker’s complaint did not include
this claim, and he made no motion to amend the complaint to add such a claim. Accordingly,
Baker did not properly present it to the district court, and we will not consider it for the first
time on appeal.”), with DeRouen v. Shoneys, Inc., 76 F. App’x 532, 533 (5th Cir. 2003) (per
curiam) (unpublished) (remanding case “so that [the district court] may consider whether
[plaintiff] adequately pleaded . . . a claim in his complaint”).
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v. FedEx Ground Package Sys., Inc., 614 F.3d 145, 149 (5th Cir. 2010); and (2)
“conspiracies to deny any citizen equal protection of the laws or to injure a
citizen for his efforts to ensure the rights of others to equal protection,” Bryant
v. Military Dep’t of Miss., 597 F.3d 678, 687 (5th Cir. 2010). To the extent Ard’s
claim is premised on the first category, it must fail, as Ard has not contended
that her right to participate in judicial proceedings has been impeded. It
appears that Ard is not asserting a claim under the second category—which
requires a showing of “class-based animus,” id.—as she concedes that her claim
“is not based strictly on discriminatory animus.” Even if she were, there is no
evidence of any discriminatory animus in the record, thus precluding a claim
under this second category.
Ard’s claims under Section 1986 must too fail, as a violation of that
provision is dependent on an underlying violation of Section 1985. See 42
U.S.C. § 1986 (“Every person who, having knowledge that any of the wrongs
conspired to be done, and mentioned in section 1985 of this title, are about to
be committed, and having power to prevent or aid in preventing the
commission of the same, neglects or refuses so to do, if such wrongful act be
committed, shall be liable to the party injured . . . .); see also Newberry v. E.
Tex. State Univ., 161 F.3d 276, 281 n.3 (5th Cir. 1998) (“If the § 1985 claim
fails, so must the § 1986 claim.”).
D. Motion for Sanctions and for Reopening of Discovery
The district court did not abuse its discretion in denying sanctions for
Appellees’ failure to disclose the identity of C.G. Smith, and other evidence
relating to her allegations, earlier in the litigation. As the district court noted,
there was no evidence “indicat[ing] that Sheriff Rushing, Lincoln County or
their counsel was aware of [C.G. Smith’s August 2010] statement or had been
provided a copy of that statement prior to November 2013, when counsel
received a copy of the statement from Miller’s attorney in the [C.G.] Smith
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No. 14-60282
lawsuit.” Ard’s contention that C.G. Smith’s statement may have been sent to
the law firm Wyatt Tarrant & Combs, and that therefore Rushing or Lincoln
County could have learned of the allegations from that firm, is mere
speculation. The evidence only shows that the statement was given to the
District Attorney of Lincoln and Pike counties—an employee of the state, not
Lincoln County. See Miss. Code. Ann. § 25-31-11(1) (“It shall be the duty of the
district attorney to represent the state in all matters coming before the grand
juries of the counties within his district . . . .”); Brooks v. George Cnty., 84 F.3d
157, 168 (5th Cir. 1996) (“The district attorney is considered a state official in
Mississippi . . . .”). Finally, even if Appellees’ failure to identify C.G. Smith
and produce her statement was untimely, this conduct is not sanctionable, as
the evidence is not germane to the merits of this case. As discussed above,
because the evidence shows that C.G. Smith did not provide her statement to
the District Attorney until after Ard’s assault, the statement has no bearing
on whether Rushing or Lincoln County acted with deliberate indifference. “An
appellate court need be involved [in discovery rulings] only when a party’s
substantial rights have been prejudiced and the proceeding would have turned
out differently had the evidence been disclosed.” Bass v. City of Jackson, 540
F. App’x 300, 302 (5th Cir. 2013) (per curiam) (unpublished) (holding that
“there is no indication that the district court abused its discretion in denying
the discovery/sanction motion”).
For these same reasons, Ard has failed to show that the district court
abused its discretion in denying her request to reopen discovery as to this issue.
A motion to reopen discovery must be supported by “good cause.” Fed. R. Civ.
P. 16(b)(4). The denial of a motion to reopen discovery should be affirmed
where, as here, the movant “fails to explain how the discovery it seeks bears
on the grant of summary judgment.” Marathon Fin. Ins., Inc., 591 F.3d at 469;
see also Crosby v. La. Health Serv. & Indem. Co., 647 F.3d 258, 261 (5th Cir.
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No. 14-60282
2011) (“The appellant bears the burden of proving abuse of discretion and
prejudice.”). Because C.G. Smith’s allegations are not pertinent to whether
Appellees acted with deliberate indifference, the district court did not abuse
its discretion in denying the motion to reopen discovery. See Haase v.
Countrywide Home Loans, Inc., 748 F.3d 624, 631 (5th Cir. 2014) (“Discovery
rulings are committed to the sound discretion of the trial court and will not be
reversed on appeal unless arbitrary or clearly unreasonable.” (internal citation
and quotation marks omitted)).
IV. Conclusion
For the foregoing reasons, the judgment of the district court is AFFIRMED.
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