Alejandro Leal v. Richard Wiles

Case: 16-51410 Document: 00514463537 Page: 1 Date Filed: 05/08/2018

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals

Fifth Circuit

No. 16-51410 FILED

May 8, 2018

Lyle W. Cayce

ALEJANDRO LEAL, Clerk

Plaintiff-Appellant

v.

RICHARD WILES, Sheriff, El Paso County, Texas; JOSE MENDIZABAL,

Officer, El Paso Sheriff’s Department; FNU SANCHEZ, Gang Intelligence

Officer, El Paso Sheriff’s Department,

Defendants-Appellees

Appeal from the United States District Court

for the Western District of Texas

USDC No. 3:15-CV-361

Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.

PER CURIAM: *

Alejandro Leal, a pretrial detainee in the El Paso County Detention

Facility, filed this 42 U.S.C. § 1983 action pro se against Sheriff Richard Wiles

in his official capacity, Officer Jose Mendizabal in his official and individual

capacities, and Officer Carlos Sanchez in his official and individual capacities,

based on an assault that occurred while he was in their custody. Adopting 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.

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magistrate judge’s recommendations, the district court dismissed Leal’s claim

against Sherriff Wiles in his official capacity for failure to state a claim and

granted summary judgment in favor of Officers Mendizabal and Sanchez in

their individual capacities on the basis of qualified immunity. Finding no error,

we affirm.

I.

When Alejandro Leal arrived at the jail, two detectives advised the

booking officer, who noted as such in Leal’s jail records, that Leal was to be

kept separate from (“K-S-F”) Barrio Azteca gang members because that gang

had issued a green light, or a sanctioned hit, on Leal. Leal was placed in

administrative segregation, and the rosters, floor cards, and computer

database reflected his K-S-F status to ensure his safety.

On May 8, 2015, Officer Jose Mendizabal asked Leal, as well as other

inmates in his cell block, if he wanted to go to recreation to which Leal

answered affirmatively. Officer Mendizabal escorted Leal and another inmate

from his cell block to the guard station where he advised the inmates to stand

while he went to retrieve other inmates for recreation. At this time, Officer

Carlos Sanchez, a gang intelligence officer, was inside the guard station.

Officer Mendizabal returned with one inmate from cell block four-thirty and

two inmates, who turned out to be Barrio Azteca gang members, from cell block

four-eighty. Officer Mendizabal then placed the inmates on the elevator and

stated Leal’s name aloud, and the two Barrio Azteca inmates began to assault

Leal. Leal suffered a laceration to his head and contusions to his head, face,

and neck.

Pursuant to 42 U.S.C. § 1983, Leal sued Sherriff Wiles in his official

capacity, Officer Mendizabal in his official and individual capacities, and

Officer Sanchez in his official and individual capacities, alleging inadequate

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staffing, training, and supervision, violations of policies and procedures, and

deliberate indifference to his safety. Leal sought declaratory relief and

compensatory, punitive, and nominal damages.

Defendants moved to dismiss Leal’s complaint, and the court, adopting

the magistrate judge’s report and recommendation, granted Defendants’

motion in part, dismissing, among other things, Leal’s claim against Sherriff

Wiles in his official capacity for failure to state a claim. 1 Thereafter, the parties

filed cross-motions for summary judgment, and the court, adopting the

magistrate’s report and recommendation, ruled in favor of Officers Mendizabal

and Sanchez finding that the officers were entitled to qualified immunity

because the record did not show that either officer knew of Leal’s K-S-F status

prior to the assault. Leal appeals.

II.

We begin with Leal’s argument that the court erred in dismissing his

section 1983 claim against Sherriff Wiles for failure to state a claim. This court

reviews such dismissals de novo, accepting all well-pleaded facts as true and

viewing those facts in the light most favorable to the plaintiff. 2

“Under section 1983, supervisory officials are not liable for the actions of

subordinates on any theory of vicarious liability.” 3 Rather, an official not

personally involved in the acts that deprived the plaintiff of his constitutional

rights, as here, is liable under section 1983 if: “1) the [supervisor] failed to train

or supervise the officers involved; 2) there is a causal connection between the

alleged failure to supervise or train and the alleged violation of the plaintiff’s

1 The court additionally dismissed Leal’s Eighth Amendment claim because Leal was

a pretrial detainee at the time of the assault and Leal’s claims against Officers Mendizabal

and Sanchez in their official capacities. Leal does not challenge those findings on appeal.

2 Whitley v. Hanna, 726 F.3d 631, 637 (5th Cir. 2013).

3 Thompson v. Upshur Cty., 245 F.3d 447, 459 (5th Cir. 2001) (internal quotation

marks omitted).

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rights; and 3) the failure to train or supervise constituted deliberate

indifference to the plaintiff’s constitutional rights.” 4 “In order for ‘liability to

attach based on an “inadequate training” claim, a plaintiff must allege with

specificity how a particular training program is defective.’” 5 With respect to

the third prong, deliberate indifference generally requires “a plaintiff to

demonstrate ‘at least a pattern of similar violations’ arising from training [or

supervision] that is so clearly inadequate as to be ‘obviously likely to result in

a constitutional violation.’” 6

Supervisory liability can also be established without direct participation

in the alleged events “if supervisory officials implement a policy so deficient

that the policy itself is a repudiation of constitutional rights and is the moving

force of the constitutional violation.” 7 An official policy is:

1. A policy statement, ordinance, regulation, or decision that is

officially adopted and promulgated by the [government

entity] or by an official to whom the [entity] ha[s] delegated

policy-making authority; or

2. A persistent, widespread practice of city officials or

employees, which, although not authorized by officially

adopted and promulgated policy, is so common and well

settled as to constitute a custom that fairly represents [the

entity’s] policy. Actual or constructive knowledge of such

custom must be attributable to the [entity] or to an official

to whom that body ha[s] delegated policy-making authority. 8

4 Cozzo v. Tangipahoa Par. Council–President Gov’t, 279 F.3d 273, 286 (5th Cir. 2002)

(quoting Thompson, 245 F.3d at 459).

5 Zarnow v. City of Wichita Falls, 614 F.3d 161, 170 (5th Cir. 2010) (quoting Roberts

v. City of Shreveport, 397 F.3d 287, 293 (5th Cir. 2005)).

6 Burge v. St. Tammany Par., 336 F.3d 363, 370 (5th Cir. 2003) (quoting Thompson,

245 F.3d at 459).

7 Thompkins v. Belt, 828 F.2d 298, 304 (5th Cir. 1987) (internal quotation marks

omitted).

8 Bennett v. City of Slidell, 735 F.2d 861, 862 (5th Cir. 1984) (per curiam).

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As with deliberate indifference, “proof of a custom or practice requires more

than a showing of isolated acts.” 9

The district court ruled that Leal “alleged no facts to establish that the

detention center was not adequately staffed or that the officers were not

adequately trained or supervised in May 2015, to establish the obviousness to

Sherriff Wiles that there was a risk of serious injury to any of the detainees

from the level of staffing, to establish that the officers were inadequately

trained or supervised, or to establish that any such inadequacy was the

‘moving force’ behind [Leal’s] assault.”

Leal contends this was in error because a “major rol[e] of [his] assault

had to do with inadequate training,” as admitted by Officer Mendizabal and

Commander Marco Vargas. Additionally, Leal argues that understaffing was

the “moving force behind [his] assault,” because on “the day of [his] assault

there [were] only two officers one in the guard station and one doing the

escorts,” as Officer Mendizabal and Commander Vargas also admit. Lastly,

Leal asserts that “there is a major lack of policy and procedure to protect

inmates in protective custody,” and “there is no said policy and procedure to

protect inmates from assaults.” 10

9 Burge, 336 F.3d at 370.

10 Leal asserts similar arguments in his reply brief. Leal cites Saunders v. Chatham

County, Board of Commissioners, 728 F.2d 1367 (11th Cir. 1984) (per curiam) to support his

understaffing argument. In Saunders, the Eleventh Circuit affirmed a jury verdict that,

among other things, found “evidence that the jail facilities were understaffed and with

inadequate personnel to monitor inmate activity, and that the particular pod of the jail in

which plaintiff was lodged was understaffed on the occasion when he was injured.” Id. at

1368. Saunders represents the outcome that Leal seeks but does little to show that Leal’s

allegations, taken as true and viewed in the light most favorable to him, demonstrate that

Sherriff Wiles was deliberately indifferent to Leal’s constitutional rights.

Leal additionally cites Camilo-Robles v. Hoyos for the proposition that “a supervisor .

. . may be liable under section 1983 if he formulates a policy or engages in a practice that

leads to a civil rights violation committed by another” and that “supervisory liability does not

require a showing that the supervisor had actual knowledge of the offending behavior.” 151

F.3d 1, 7 (1st Cir. 1998). The court continued, a supervisor “may be liable for the foreseeable

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We conclude that the court did not err in dismissing Leal’s claim against

Sherriff Wiles for failure to state a claim. Leal fails to allege sufficient facts to

establish that there was such a lack of adequate staff, training, and

supervision at the time of Leal’s assault that it would be obvious to Sherriff

Wiles that there was a substantial risk to detainees. Rather, Leal’s allegations

concern a single instance in which inadequate staffing, training, and

supervision resulted in his assault. More is required for section 1983 liability

to attach. 11 The court therefore committed no error.

III.

In addition, Leal argues that the court erred in granting summary

judgment in favor of Officers Mendizabal and Sanchez. “This court reviews de

novo the district court’s resolution of legal issues on a motion for summary

judgment on the basis of qualified immunity.” 12 Summary judgment must be

consequences of such conduct if he would have known of it but for his deliberate indifference

or willful blindness.” Id. (internal quotation marks omitted). Our finding that Leal’s

allegations fail to show deliberate indifference comports with Camilo-Robles.

Lastly, Leal cites Jett v. Dallas Independent School District to argue that a custom

does not specifically have to be authorized or ordered by a final policymaker. 491 U.S. 701,

737 (1989). This principle is not relevant to the disposition of this case.

11 Zarnow, 614 F.3d at 170 (“[T]his Court has previously rejected attempts by plaintiffs

to present evidence of isolated violations and ascribe those violations to a failure to train.”);

Estate of Davis ex rel. McCully v. City of N. Richland Hills, 406 F.3d 375, 382 (5th Cir. 2005)

(“We have stressed that a single incident is usually insufficient to demonstrate deliberate

indifference.”); Burge, 336 F.3d at 370 (“And just as proof of a custom or practice requires

more than a showing of isolated acts, proof of deliberate indifference, generally requires a

showing ‘of more than a single instance of the lack of training or supervision causing a

violation of constitutional rights.’” (quoting Thompson, 245 F.3d at 459)).

We do not suggest that a single incident, as opposed to a pattern of violations, can

never suffice to demonstrate deliberate indifference. The “single-incident exception” is a

“narrow one” that “we have been reluctant to expand.” Burge, 336 F.3d at 373. “To rely on

this exception, a plaintiff must prove that the ‘highly predictable’ consequence of a failure to

train would result in the specific injury suffered, and that the failure to train represented the

‘moving force’ behind the constitutional violation.” Roberts, 397 F.3d at 295 (quoting Brown

v. Bryan Cty., 219 F.3d 450, 461 (5th Cir. 2000)). Leal does not fall within this exception.

12 Hanks v. Rogers, 853 F.3d 738, 743 (5th Cir. 2017) (internal quotation marks

omitted).

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granted “if the movant shows that there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter of law.” 13 This

court views the facts in the light most favorable to the non-moving party and

draws all reasonable inferences in its favor. 14 “A qualified immunity defense

alters the usual summary judgment burden of proof. Once an official pleads

the defense, the burden then shifts to the plaintiff, who must rebut the defense

by establishing a genuine fact issue as to whether the official’s allegedly

wrongful conduct violated clearly established law.” 15

The Fourteenth Amendment’s Due Process Clause protects the rights of

pretrial detainees. 16 While “prison officials have a duty . . . to protect prisoners

from violence at the hands of other prisoners,” not “every injury suffered by

one prisoner at the hands of another . . . translates into constitutional liability

for prison officials responsible for the victim’s safety.” 17 A prison official must

have a sufficiently culpable mind, and the measure of that culpability is the

standard of subjective deliberate indifference enunciated in Farmer. 18 A prison

official acts with deliberate indifference only if he subjectively “knows of and

disregards an excessive risk to inmate . . . safety.” 19 That is, “the official 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.” 20

13 FED. R. CIV. P. 56(a).

14 Hanks, 853 F.3d at 743.

15 Id. at 744 (internal quotation marks and citation omitted).

16 Hare v. City of Corinth, 74 F.3d 633, 639 (5th Cir. 1996) (en banc).

17 Farmer v. Brennan, 511 U.S. 825, 833–34 (1994) (internal quotation marks and

citations omitted).

18 Id. at 837; see also Hare, 74 F.3d at 648 (“Though Farmer dealt specifically with a

prison official’s duty under the Eight Amendment to provide a convicted inmate with humane

conditions of confinement, we conclude that its subjective definition of deliberate indifference

provides the appropriate standard for measuring the duty owed to pretrial detainees under

the Due Process Clause.”).

19 Farmer, 511 U.S. at 837.

20 Id.

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“Deliberate indifference is an extremely high standard to meet.” 21 The

standard “requires a showing of more than negligence or even gross

negligence.” 22 Consequently, “[a]ctions and decisions by officials that are

merely inept, erroneous, ineffective, or negligent do not amount to deliberate

indifference.” 23

A.

Beginning with Officer Mendizabal, the court determined the following

from the parties’ summary judgment evidence: (1) Leal’s protected K-S-F

status and the green light were in the computer database and listed on the

recreation roster; (2) Officer Mendizabal should have checked the information

on the recreation roster concerning any K-S-F notes or green lights before

taking inmates out for recreation; (3) Officer Mendizabal failed to do so, and

was disciplined for his error; and (4) A reprimand letter indicates that Officer

Mendizabal had a recreation roster that listed Leal’s K-S-F status and the

green light, but the letter does not indicate that Officer Mendizabal read the

roster.

The court additionally acknowledged that Officer Mendizabal was aware

of the general risk of transporting lockdown inmates together, yet noted that

he took precautions—i.e., Officer Mendizabal ensured that the inmates were

handcuffed and stood between them in the elevator. The court stressed that

Officer Mendizabal tried to stop the attack by placing himself between the

assailants and Leal. Based on this evidence, the court concluded that no

reasonable fact finder could find that Officer Mendizabal was deliberately

indifferent to Leal’s safety.

21 Domino v. Tex. Dep’t of Criminal Justice, 239 F.3d 752, 756 (5th Cir. 2001).

22 Estate of Davis ex. rel McCully, 406 F.3d at 381.

23 Id. (internal quotation marks omitted).

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Leal argues that Officer Mendizabal was aware of or should have been

aware of a substantial risk of serious harm because his protected status was

noted in the computer database and recreation roster. Leal additionally points

out that Officer Mendizabal “admits to not hav[ing] checked for flags such as

keep separate from Barrio Azteca and green light Barrio Azteca” and

acknowledges that the “inmates from [four-eighty] are gangster” and “inmates

are [on] lock down for different reasons.” Leal insists that Officer Mendizabal

had a chance to draw the inference that there was a substantial risk of serious

harm and should not escape liability because he was “to[o] busy and under

pressure.”

We conclude that Leal fails to show that Officer Mendizabal acted with

deliberate indifference. No direct evidence indicates that Officer Mendizabal

knew of Leal’s protected status prior to his assault. And the circumstantial

evidence does not meet the high standard of deliberate indifference. Though

Sherriff Wiles’s reprimand letter indicates that Officer Mendizabal had a

recreation roster that listed Leal’s K-S-F status and the green light, the record

falls silent on whether Officer Mendizabal read that recreation roster and thus

knew of Leal’s protected status prior to the assault. To be sure, Officer

Mendizabal should have checked the recreation roster; however, liability

attaches only if Officer Mendizabal knew—not merely should have known—

about the risk. 24

This case, however, presents a closer question in light of Officer

Mendizabal’s observations that inmates are on lock down for different reasons,

including gang affiliation, and that the inmates he escorted appeared to be

gang members. Leal’s argument that Officer Mendizabal had a chance to “draw

24 Olabisiomotosho v. City of Houston, 185 F.3d 521, 528 (5th Cir. 1999); see also

Farmer, 511 U.S. at 837.

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the inference” efforts to suggest that Officer Mendizabal “refused to verify

underlying facts that he strongly suspected to be true, or declined to confirm

inferences of risk that he strongly suspected to exist.” 25 In Farmer, the Court,

noting such evidence would not permit a prison official to escape liability,

provided examples as to what it meant by “refus[ing] to verify” or “declin[ing]

to confirm”; that is,

when a prison official is aware of a high probability of facts

indicating that one prisoner has planned an attack on another but

resists opportunities to obtain final confirmation; or when a prison

official knows that some diseases are communicable and that a

single needle is being used to administer flu shots to prisoners but

refuses to listen to a subordinate who he strongly suspects will

attempt to explain the associated risk of transmitting disease. 26

Here, the record does not indicate that Officer Mendizabal resisted an

opportunity to confirm or refused to listen to a subordinate to ultimately

disregard strong indications of a substantial risk to Leal’s safety. 27 Rather, and

as the record shows, Officer Mendizabal did not check the recreation roster

because he was in a “hurry.” This, without more, does not establish that Officer

Mendizabal knew of and disregarded a substantial risk of serious harm to

Leal. 28 Therefore, the court committed no error in granting summary judgment

in favor of Officer Mendizabal.

B.

The court, in granting summary judgment in favor of Officer Sanchez,

concluded that the evidence is undisputed that Officer Sanchez was not aware

of Leal’s K-S-F status prior to his assault. Additionally, the court observed that

25 Farmer, 511 U.S. at 837, 843 n.8.

26 Id. at 843 n.8.

27 Vasquez v. Livingston, 617 F. App’x 350, 351 (5th Cir. 2015) (per curiam) (“The

existence of an objective risk to the inmate’s safety alone is insufficient to establish that a

particular defendant disregarded that risk.” (citing Farmer, 511 U.S. at 837–38)).

28 See, e.g., Olabisiomotosho, 185 F.3d at 526, 528 (Protections under the Fourteenth

Amendment are not “triggered . . . by negligent inaction.”).

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though Officer Sanchez was part of the gang intelligence unit, he did not know

every gang member or every K-S-F status/green light; that working in the

guard station, Officer Sanchez did not see who Officer Mendizabal was

transporting to recreation; and that Officer Sanchez is not expected to

determine whether flags or conflicts exist for those being transported to

recreation.

Leal argues that Officer Sanchez should have known of Leal’s K-S-F

status because he was in charge of operations on the fourth floor and he was a

gang intelligence officer. Leal additionally contends that Officer Sanchez had

time to warn Officer Mendizabal of Leal’s K-S-F status because Officer

Mendizabal left Leal and other inmates in front of the guard station while he

went to get other inmates for recreation.

We conclude that the court did not err in granting summary judgment in

favor of Officer Sanchez. Leal’s arguments do not change the record before us—

that Officer Sanchez did not know Leal’s K-S-F status or the green light prior

to the assault. Thus, Officer Sanchez did not “know[] of and disregard[] an

excessive risk” to Leal’s safety. 29 Leal’s argument that Officer Sanchez violated

his constitutional rights because he should have known Leal’s status since it

was available in the computer database and other jail records also fails, as “an

official’s failure to alleviate a significant risk that he should have perceived but

did not, while no cause for commendation, cannot under our cases be

condemned as the infliction of punishment.” 30 Accordingly, the court did not

err in granting summary judgment in favor of Officer Sanchez.

29 Farmer, 511 U.S. at 837.

30 Id. at 838.

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IV.

We affirm the district court’s decisions, adopting the magistrate’s

recommendations, to dismiss Sherriff Wiles for failure to state a claim and to

grant summary judgment in favor of Officers Mendizabal and Sanchez on the

basis of qualified immunity. 31

31 Leal has also filed a motion for appointment of counsel. Because he has not shown

that the appeal presents exceptional circumstances warranting the appointment of appellate

counsel, his motion is denied. See Cooper v. Sheriff, Lubbock Cty., 929 F.2d 1078, 1084 (5th

Cir. 1991).

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