John Lansdell v. Lee Miller

Case: 20-60143 Document: 00515532458 Page: 1 Date Filed: 08/19/2020

United States Court of Appeals

for the Fifth Circuit

United States Court of Appeals

Fifth Circuit

No. 20-60143 FILED

August 19, 2020

Summary Calendar

Lyle W. Cayce

Clerk

John David Lansdell,

Plaintiff—Appellant,

versus

Lee Miller, In His Individual Capacity; Lee County,

Mississippi,

Defendants—Appellees.

Appeal from the United States District Court

for the Northern District of Mississippi

USDC No. 1:18-CV-65

Before King, Smith, and Oldham, Circuit Judges.

Per Curiam:*

John Lansdell appeals the district court’s dismissal of his 42 U.S.C.

§ 1983 claims against Lee County, Mississippi, and Lee Miller, an officer in

the Tupelo City Police Department.

*

Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.

Case: 20-60143 Document: 00515532458 Page: 2 Date Filed: 08/19/2020

No. 20-60143

First, Lansdell argues that Miller committed excessive force against

him in violation of the Fourth Amendment. Lansdell says that, even though

he told Miller that he had a preexisting shoulder injury and asked to be

handcuffed in front of his body, Miller refused and instead used two sets of

handcuffs behind Lansdell’s back. On this claim, the district court

determined that Miller was entitled to qualified immunity. To defeat a claim

for qualified immunity, a plaintiff must show that the right he claims was

violated “was ‘clearly established’ at the time of the violation.” Tolan v.

Cotton, 572 U.S. 650, 656 (2014) (per curiam) (citation omitted). “The

precedent must be clear enough that every reasonable official would interpret

it to establish the particular rule the plaintiff seeks to apply.” District of

Columbia v. Wesby, 138 S. Ct. 577, 590 (2018) (per curiam).

We have held that “handcuffing too tightly, without more, does not

amount to excessive force.” Glenn v. City of Tyler, 242 F.3d 307, 314 (5th Cir.

2001). Lansdell cites no controlling precedent that would put every

reasonable officer on notice as to how to arrest someone with a preexisting

injury. Lansdell points to out-of-circuit precedent, but we can only rely on

out-of-circuit cases as part of the clearly-established inquiry when they

demonstrate “a robust consensus of persuasive authority.” Morgan v.

Swanson, 659 F.3d 359, 371–72 (5th Cir. 2011) (en banc) (quotation marks

omitted). As the First Circuit has observed, the circuit courts “have reached

different holdings on the constitutionality of handcuffing an allegedly injured

arrestee behind his or her back.” Hunt v. Massi, 773 F.3d 361, 369 (1st Cir.

2014). There is therefore no robust consensus on the issue. Accordingly, at

the time of Lansdell’s arrest, it was not clearly established that Miller could

not use two sets of cuffs to handcuff Lansdell behind his back.

Second, Lansdell argues that Miller denied him adequate medical care

for his shoulder injury in violation of the Fourteenth Amendment. To

establish that kind of violation, a plaintiff must show that the officer “act[ed]

2

Case: 20-60143 Document: 00515532458 Page: 3 Date Filed: 08/19/2020

No. 20-60143

with deliberate indifference to a substantial risk of serious medical harm and

resulting injuries.” Mace v. City of Palestine, 333 F.3d 621, 625 (5th Cir. 2003).

Deliberate indifference has a subjective component, requiring “that the

official have subjective knowledge of the risk of harm. Mere negligence or a

failure to act reasonably is not enough. The officer must have a subjective

intent to cause harm.” Id. at 625–26 (citations omitted). It is undisputed that,

shortly after arriving at the county jail, Miller offered Lansdell the

opportunity to go to the hospital immediately. Lansdell refused. The district

court correctly noted that the offer shows that Miller did not intend to cause

Lansdell harm. Lansdell has therefore failed to satisfy the “extremely high

standard” required for a finding of deliberate indifference. Cadena, 946 F.3d

717, 728 (5th Cir. 2020); cf. Hall v. Robinson, 618 F. App’x 759, 764 (5th Cir.

2015) (per curiam) (holding that plaintiff’s failure to take advantage of

available procedure that would have remedied the complained-of harm

undermined deliberate-indifference claim).

Finally, Lansdell argues that Lee County is also liable for providing

inadequate medical care. To establish municipal liability under § 1983, a

plaintiff must show “(1) a policymaker; (2) an official policy; and (3) a

violation of a constitutional right whose ‘moving force’ is the policy or

custom.” Alvarez v. City of Brownsville, 904 F.3d 382, 389 (5th Cir. 2018) (en

banc) (citations omitted). Lansdell claims that three instances of inmate

deaths between 2006 and 2015 in Lee County tend to show the existence of

a policy. He provides no details as to how these three incidents are linked, or

how they demonstrate a policy of misconduct. Without more, three

“[i]solated violations” over the space of nine years “are not the persistent,

often repeated constitutional violations that constitute custom and policy.”

Bennett v. City of Slidell, 728 F.2d 762, 768 n.3 (5th Cir. 1984); see Peterson v.

City of Fort Worth, 588 F.3d 838, 851 (holding that evidence of 27 complaints

of excessive force over a three year period did not suffice to survive summary

3

Case: 20-60143 Document: 00515532458 Page: 4 Date Filed: 08/19/2020

No. 20-60143

judgment because “plaintiffs ha[d] failed to provide context that would show

a pattern . . . establishing a municipal policy”).

In the alternative, Lansdell says that his own experience at the Lee

County jail suffices to show the existence of a municipal policy to deny

medical treatment. Typically, however, we cannot infer the existence of a

policy merely from the conduct of several officers during one incident. See,

e.g., Mason v. Lafayette City-Parish Consol. Gov’t, 806 F.3d 268, 281 (5th Cir.

2015) (holding that the actions of three officers were insufficient to

demonstrate the existence of a policy); Culbertson v. Lykos, 790 F.3d 608, 629

(5th Cir. 2015) (refusing to infer a municipal policy of retaliation from a single

“retaliatory campaign against” plaintiffs, “all arising from the same

predicate events”).

Lansdell relies on our holding in Grandstaff v. City of Borger, 767 F.2d

161 (5th Cir. 1985), that the police department’s conduct over the course of

one night sufficed to show an unconstitutional policy. Id. at 171–72. But the

holding in Grandstaff arose from the extraordinary facts of that case, where

an entire police department opened fire indiscriminately on a slow-moving

pickup truck. Barkley v. Dillard Dep’t Stores, Inc., 277 F. App’x 406, 413 (5th

Cir. 2008) (per curiam). We have therefore “limited” Grandstaff’s

application “to ‘extreme factual situations.’” Barkley, 277 F. App’x at 413

(quoting Snyder v. Trepagnier, 142 F.3d 791, 797 (5th Cir. 1998)). Lansdell has

not offered sufficient evidence that his interactions with county employees—

one of whom offered to let him go to the hospital and another who treated

him—present such an extreme factual situation. Cf. Westfall v. Luna, 903

F.3d 534, 548, 551–52 (5th Cir. 2018) (refusing to infer a policy where an

officer “body-slammed [plaintiff] to the ground” even though she was not

resisting and distinguishing Grandstaff as “far more egregious”). Landsell’s

evidence therefore was insufficient to show a triable issue of fact as to the

existence of an unconstitutional municipal policy.

4

Case: 20-60143 Document: 00515532458 Page: 5 Date Filed: 08/19/2020

No. 20-60143

Affirmed.

5