Ellis Hicks v. Dept of Public Safety & Corr

Case: 20-30125 Document: 00515610447 Page: 1 Date Filed: 10/21/2020

United States Court of Appeals

for the Fifth Circuit United States Court of Appeals

Fifth Circuit

FILED

October 21, 2020

No. 20-30125 Lyle W. Cayce

Clerk

Ellis Ray Hicks,

Plaintiff—Appellee,

versus

James M. LeBlanc, Secretary, Department of Public

Safety and Corrections, individually and in his

official capacity; Terry Lawson, Department of

Corrections employee, individually and in his official

capacity,

Defendants—Appellants.

Appeal from the United States District Court

for the Middle District of Louisiana

USDC No. 3:19-CV-108

Before Graves, Costa, and Engelhardt, Circuit Judges.

Per Curiam:*

Ellis Ray Hicks brought a lawsuit under 42 U.S.C. § 1983 and

Louisiana state law against the Louisiana Department of Public Safety and

*

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opinion should not be published and is not precedent except under the limited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: 20-30125 Document: 00515610447 Page: 2 Date Filed: 10/21/2020

No. 20-30125

Corrections (DPSC); James LeBlanc, individually and in his official capacity

as the DPSC Secretary; and Terry Lawson, individually and in his official

capacity as a DPSC employee. Hicks alleged that he was wrongfully detained

for sixty days after the expiration of his prison sentence. The district court

denied qualified immunity at the motion-to-dismiss stage, which LeBlanc and

Lawson appealed. We conclude that the district court properly denied

qualified immunity for Lawson but not for LeBlanc. Accordingly, we

AFFIRM IN PART and REVERSE IN PART.

I.

On May 19, 2008, Hicks was arrested for second-degree battery in

Louisiana and released on bond after five days of detention on May 23, 2008.

He was sentenced to probation and later incarcerated on that charge from

March 27, 2012 to May 23, 2013. Accordingly, he served approximately 428

days in custody in Louisiana.

On July 25, 2016, Hicks was arrested in Louisiana for a parole

violation, stemming from a conviction in Arkansas for which he served 455

days in Arkansas’ Faulkner County Jail. On January 3, 2017, after 163 days of

pretrial detention, Hicks pled guilty to the violation in the Second Judicial

District of Louisiana, which sentenced him to four years of hard labor and

gave him credit for time served in Arkansas. Hicks served his sentence at the

Claiborne Parish Detention Center. Hicks alleged that he should have been

released on February 24, 2018.

On February 23, 2017, Lawson, a DPSC employee at the David Wade

Correctional Center, calculated Hicks’ sentence to end on February 28,

2018. However, on March 10, 2017, Lawson recalculated the sentence to end

on May 23, 2019, essentially removing the credit for time served in Arkansas.

When Hicks questioned the new release date, he was told by Brian

Flynn, Claiborne Parish Clerk of Court, that the DPSC would not give him

2

Case: 20-30125 Document: 00515610447 Page: 3 Date Filed: 10/21/2020

No. 20-30125

credit for time served without an official document from the State of

Arkansas showing the credits due. Lawson privately informed Hicks that he

was not qualified to receive credit for time served.

On June 23, 2017, with the help of friends and family, Hicks obtained

a letter from the Arkansas Department of Corrections confirming his time

served in Arkansas. The letter was copied to the Claiborne Parish Detention

Center, the David Wade Correctional Center, and Flynn. On July 3, 2017,

the letter was sent to Lawson, who recalculated the sentence to end on

January 8, 2018.

On July 11, 2017, because Hicks remained concerned that he was not

receiving proper time-served credit, he filed a motion to clarify the record in

the Second Judicial District Court. On August 15, 2017, the sentencing judge

again ordered that Hicks’ sentence be “four (4) years of hard labor with

credit for all time served, including the time served in the State of Arkansas.”

On December 13, 2017, Lawson recalculated the sentence and concluded the

release date to be July 11, 2018. Hicks alleged that Lawson purposely delayed

the release date in retaliation to Hicks’ active pursuit of his timely release.

On January 5, 2018, Hicks filed an Administrative Remedy Procedure

regarding Lawson’s refusal to consider his time-served credit. On January 10,

2018, Hicks filed a motion to enforce the judge’s order, which was granted

on January 12, 2018. On February 6, 2018, a habeas hearing was held, in

which the judge and the District Attorney confirmed that the sentence

included time served in Arkansas, but the judge advised Hicks that she could

do nothing else to help him and that he needed to file a lawsuit in Baton Rouge

against the DPSC. Hicks continued to pursue relief regarding his release date.

During this time, Lawson expressed to Hicks’ friends and family that “an

awful lot of people were calling him” about Hicks; that “anyone who messes

3

Case: 20-30125 Document: 00515610447 Page: 4 Date Filed: 10/21/2020

No. 20-30125

with me gets longer time”; and that “if someone keeps bothering me about

their computations they can do more time.”

On April 17, 2018, Hicks’ attorney called Lawson inquiring why Hicks

had not yet been released. In a recorded phone call, Lawson advised the

attorney that “judges have no say whatsoever to us applying our time comp

laws,” and confirmed that Hicks was only getting 904 days of credit, which

excluded time served in Arkansas. On April 20, 2018, Hicks’ attorney

communicated with Jonathan Vining at the DPSC headquarters. On April 25,

2018, Hicks was released from prison.

On December 10, 2018, Hicks filed the instant action against the

DPSC, LeBlanc, and Lawson, alleging, inter alia, that the defendants violated

his Fourteenth Amendment and First Amendment rights, and that the DPSC

and LeBlanc should be held liable for the DPSC’s practice of detaining

prisoners beyond their release dates.

Defendants filed a motion to dismiss under Federal Rule of Civil

Procedure 12(c), asserting that: (1) Hicks’ claims for money damages against

defendants in their official capacities were barred by Eleventh Amendment

sovereign immunity; (2) his claims were barred under Heck v. Humphrey, 512

U.S. 477 (1994); and (3) LeBlanc and Lawson were entitled to qualified

immunity. The district court dismissed Hicks’ claims for monetary damages

against defendants in their official capacities, but found no grounds to dismiss

the other claims under Heck or the qualified immunity doctrine. LeBlanc and

Lawson timely appealed. On appeal, Hicks filed a motion for sanctions under

Federal Rule of Appellate Procedure 38.

II.

We have jurisdiction to review a district court’s order denying a

motion to dismiss on the basis of qualified immunity to the extent that it turns

on an issue of law. Brown v. Miller, 519 F.3d 231, 236 (5th Cir. 2008). “We

4

Case: 20-30125 Document: 00515610447 Page: 5 Date Filed: 10/21/2020

No. 20-30125

review the district court’s denial of the qualified immunity defense de novo,

accepting all well-pleaded facts as true and viewing them in the light most

favorable to the plaintiff.” Id. “In an interlocutory appeal of a denial of

qualified immunity, we have jurisdiction to consider only whether ‘a certain

course of conduct would, as a matter of law, be objectively unreasonable in

light of clearly established law.’” Id. (quoting Kinney v. Weaver, 367 F.3d 337,

346 (5th Cir. 2004) (en banc)).

Thus, to the extent that Appellants’ arguments rest on factual

disputes (e.g., Hicks was “under-detained” rather than over-detained), “we

have jurisdiction only to decide whether the district court erred in concluding

as a matter of law that officials are not entitled to [qualified immunity] on a

given set of facts.” Ramirez v. Escajeda, 921 F.3d 497, 499 (5th Cir. 2019)

(quoting Rich v. Palko, 920 F.3d 288, 293 (5th Cir. 2019)). “We do not

consider the correctness of the plaintiff’s version of the facts.” Id. at 500

(internal quotation marks, alteration, and citation omitted).

III.

Appellants argue that the district court erred in denying their qualified

immunity defense at the motion-to-dismiss stage. They assert that Hicks

failed to adequately plead facts supporting his claims that Lawson over-

detained him in violation of his Fourteenth and First Amendment rights, and

that LeBlanc was deliberately indifferent to the practice of over-detention of

DPSC inmates. We first address the Fourteenth Amendment claims asserted

against both defendants, then turn to the First Amendment claim against

Lawson.

A.

“The doctrine of qualified immunity protects government officials

‘from liability for civil damages insofar as their conduct does not violate

clearly established statutory or constitutional rights of which a reasonable

5

Case: 20-30125 Document: 00515610447 Page: 6 Date Filed: 10/21/2020

No. 20-30125

person would have known.’” Pearson v. Callahan, 555 U.S. 223, 231 (2009)

(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Courts conduct a

two-step inquiry to determine whether state actors are entitled to qualified

immunity. Id. at 232 (citing Saucier v. Katz, 533 U.S. 194, 201 (2001)). First,

a court decides whether the facts that the plaintiff has alleged in her

complaint show a violation of a constitutional right. Id. The next step is to ask

whether the facts pleaded establish that a defendant’s actions were

objectively unreasonable in light of clearly established law at the time of the

alleged misconduct. Id. at 244. “The relevant, dispositive inquiry in

determining whether a right is clearly established is whether it would be clear

to a reasonable [official] that his conduct was unlawful in the situation he

confronted.” Porter v. Epps, 659 F.3d 440, 445 (5th Cir. 2011) (quoting

Saucier, 533 U.S. at 202).

B.

With respect to his Fourteenth Amendment claim, Hicks satisfied the

first prong of the qualified immunity inquiry when he alleged that Lawson

refused to consider judge-ordered time-served credit and caused Hicks to be

incarcerated until April 25, 2018, approximately sixty days after the correct

release date of February 24, 2018. The Fourteenth Amendment Due Process

Clause is violated where a prisoner remains incarcerated after the legal

authority to hold him has expired. See Douthit v. Jones, 619 F.2d 527, 532 (5th

Cir. 1980) (“Detention of a prisoner thirty days beyond the expiration of his

sentence in the absence of a facially valid court order or warrant constitutes

a deprivation of due process.”); see also Porter, 659 F.3d at 445 (“[A] jailer

has a duty to ensure that inmates are timely released from prison.”).

Further, Lawson’s alleged actions were objectively unreasonable in

light of clearly established law at the time of his misconduct. A prisoner’s

right to timely release was clearly established well before 2017, when

6

Case: 20-30125 Document: 00515610447 Page: 7 Date Filed: 10/21/2020

No. 20-30125

Lawson’s actions began to occur. See id. A reasonable DPSC employee also

should have known to credit time served when calculating an inmate’s release

date, where the court ordered such credit to be considered. See La. Code

Crim. Proc. Ann. art. 883.1 (“The sentencing court may specify that the

sentence imposed be served concurrently with a sentence imposed by a

federal court or a court of any other state . . . .”); La. Code Crim. Proc.

Ann. art. 880 (“A defendant shall receive credit toward service of his

sentence for time spent in actual custody prior to the imposition of

sentence.”); see also Boddye v. La. Dep’t of Corr., 175 So. 3d 437, 441 (La. Ct.

App. 2015) (“It is well settled that the determination of the sentence a

defendant is to serve, and what, if any, conditions are to be imposed on that

sentence, is made by the trial judge, not the defendant’s custodian.”);

Dorman v. Ward, 718 So. 2d 474, 476 (La. Ct. App. 1998) (holding that where

an inmate is convicted of a new felony in Florida while on parole supervision

on a prior offense in Louisiana, the sentencing court may give credit for time

served in Florida toward his Louisiana sentence for parole revocation).

Accordingly, the district court did not err in denying Lawson’s qualified

immunity defense against Hicks’ Fourteenth Amendment claim.

C.

Having established that Hicks’ Fourteenth Amendment rights were

violated when he was incarcerated approximately sixty days beyond his

release date, we must next consider whether LeBlanc’s actions, in light of his

duty to ensure an inmate’s timely release, were objectively unreasonable. See

Porter, 659 F.3d at 447.

A supervisory official may be held liable only if (1) he affirmatively

participates in the acts that cause the constitutional deprivation, or (2) he

implements unconstitutional policies that causally result in the constitutional

injury. Id. at 446. “In order to establish supervisor liability for constitutional

7

Case: 20-30125 Document: 00515610447 Page: 8 Date Filed: 10/21/2020

No. 20-30125

violations committed by subordinate employees, plaintiffs must show that

the supervisor act[ed], or fail[ed] to act, with deliberate indifference to

violations of others’ constitutional rights committed by their subordinates.”

Id. (internal quotation marks and citation omitted, alterations and emphasis

in original). “A failure to adopt a policy can be deliberately indifferent when

it is obvious that the likely consequences of not adopting a policy will be a

deprivation of constitutional rights.” Id. (quoting Rhyne v. Henderson Cty.,

973 F.2d 386, 392 (5th Cir. 1992)). “A supervisor may also be liable for failure

to supervise or train if: ‘(1) the supervisor either failed to supervise or train

the subordinate official; (2) a causal link exists between the failure to train or

supervise and the violation of the plaintiff’s rights; and (3) the failure to train

or supervise amounts to deliberate indifference.’” Id. (quoting Goodman v.

Harris Cty., 571 F.3d 388, 395 (5th Cir. 2009)).

Deliberate indifference requires “proof that a municipal actor

disregarded a known or obvious consequence of his action.” Connick v.

Thompson, 563 U.S. 51, 61 (2011) (quoting Bd. of Comm’rs of Bryan Cty. v.

Brown, 520 U.S. 397, 410 (1997)). To establish a state actor’s disregard, there

must be “actual or constructive notice” “that a particular omission in their

training program causes . . . employees to violate citizens’ constitutional

rights” and the actor nevertheless “choose[s] to retain that program.” Id.

(citation omitted). “A pattern of similar constitutional violations by

untrained employees is ordinarily necessary to demonstrate deliberate

indifference.” Id. at 62 (internal quotation marks and citation omitted).

The complaint contained no allegations that LeBlanc affirmatively

participated in the acts that caused Hicks’ constitutional deprivation.

Instead, Hicks’ claim against LeBlanc was predicated on his conduct in (1)

failing to promulgate adequate policies, and (2) failing to train and supervise

DPSC employees. We must therefore consider whether LeBlanc’s alleged

actions, or inaction, were objectively unreasonable in light of the clearly

8

Case: 20-30125 Document: 00515610447 Page: 9 Date Filed: 10/21/2020

No. 20-30125

established law that a prison official must ensure an inmate’s timely release

and that such an official may be liable for failure to promulgate policy or

failure to train and supervise if he acted with deliberate indifference to

constitutional rights. See Porter, 659 F.3d at 446.

Whether LeBlanc acted with deliberate indifference is a close call.

Hicks alleged that LeBlanc knew of the DPSC’s long history of over-

detaining inmates; that DPSC employees used different methods to calculate

release dates; and that the DPSC had not disciplined employees who

miscalculated sentences. However, the alleged facts—which included

processing delays, data errors, inconsistent calculation methodologies, and

unspecified deficiencies—speak to the incompetence of DPSC employees

and the lack of adequate training and supervision. Based on these allegations,

LeBlanc could be held liable for incompetent over-detention, such as the

failure to process a prisoner’s release or immediately compute an inmate’s

sentence after being sentenced to time served. See Traweek v. Gusman, 414 F.

Supp. 3d 847 (E.D. La. 2019); Grant v. Gusman, No. 17-2797, 2018 WL

3869494 (E.D. La. Aug. 14, 2018). But it cannot be said that LeBlanc had

notice that his employees were purposely disregarding sentencing orders out

of retaliatory intent. The complaint was devoid of allegations supporting the

reasonable inference that a pattern of intentional over-detention existed in the

DPSC; that is, the alleged facts suggest a pattern of over-detention caused by

quality control deficiencies and the lack of training and supervision, not a

pattern of over-detention stemming from the blatant refusal to credit

offenders with time served contrary to sentencing orders. In the absence of

such a pattern, LeBlanc could not have acted with deliberate indifference to

Lawson’s intentional sentencing miscalculation and over-detention of Hicks.

Accordingly, the district court erred in denying LeBlanc’s defense of

qualified immunity.

9

Case: 20-30125 Document: 00515610447 Page: 10 Date Filed: 10/21/2020

No. 20-30125

D.

We next address the First Amendment claim. To state a valid claim

for retaliation, a prisoner must allege (1) a specific constitutional right, (2)

the defendant’s intent to retaliate against the prisoner for his exercise of that

right, (3) a retaliatory adverse act, and (4) causation. Butts v. Martin, 877 F.3d

571, 588 (5th Cir. 2017). A plaintiff must “produce direct evidence of

motivation” or “allege a chronology of events from which retaliation may

plausibly be inferred.” Id.

Hicks satisfied the first prong of the qualified immunity inquiry when

he alleged that Lawson, in retaliation against Hicks for pursuing judicial

remedies to confirm his timely release, extended his sentence by disregarding

time-served credit (again). Prison officials may not retaliate against prisoners

for exercising their constitutional rights, including a prisoner’s First

Amendment right of access to the courts. Brewer v. Wilkinson, 3 F.3d 816, 820

(5th Cir. 1993). “Filing grievances and otherwise complaining about the

conduct of correctional officers through proper channels are constitutionally

protected activities . . . .” Butts, 877 F.3d at 589 (citing Reese v. Skinner, 322

F. App’x 381, 383 (5th Cir. 2009)). Protected activities include “exercising

the right of access to the courts, or for complaining to a supervisor about a

guard’s misconduct.” Woods v. Smith, 60 F.3d 1161, 1164 (5th Cir. 1995).

Under the second prong, Lawson’s actions were objectively

unreasonable in light of clearly established law at the time of his misconduct.

A prisoner’s right of access to the courts was clearly established well before

Lawson’s actions occurred. See id. No reasonable DPSC employee could

have assumed that she could retaliate against a prisoner and extend his

sentence simply because he pursued judicial remedies to confirm his timely

release. See id. The alleged chronology of the events and Lawson’s

statements show the causal connection between Hicks’ constitutional

10

Case: 20-30125 Document: 00515610447 Page: 11 Date Filed: 10/21/2020

No. 20-30125

activity and Lawson’s unlawful actions. Accordingly, the district court did

not err in denying Lawson’s qualified immunity defense against Hicks’ First

Amendment claim.

IV.

Lastly, we address Hicks’ motion for sanctions filed pursuant to

Federal Rule of Appellate Procedure 38. Under Rule 38, a court of appeals

may award “just damages and single or double costs” if it determines that an

appeal is frivolous. Fed. R. App. P. 38. An appeal is frivolous “if the result

is obvious or the arguments of error are wholly without merit.” Coghlan v.

Starkey, 852 F.2d 806, 811 (5th Cir. 1988). We exercise our discretion not to

grant sanctions under Rule 38 in this case. Though Lawson’s arguments on

appeal lacked merit, LeBlanc’s appeal was successful and cannot be said to

be frivolous. Accordingly, we deny the motion for sanctions.

V.

For the foregoing reasons, we AFFIRM the district court’s judgment

denying qualified immunity for Lawson and REVERSE the judgment

denying qualified immunity for LeBlanc. We DENY Appellee’s motion for

sanctions.

11