Rombach v. Culpepper

Case: 20-30554 Document: 00515935728 Page: 1 Date Filed: 07/13/2021

United States Court of Appeals

for the Fifth Circuit United States Court of Appeals

Fifth Circuit

FILED

July 13, 2021

No. 20-30554 Lyle W. Cayce

Clerk

Donna Mahl Rombach, on behalf of the minor child, D.A.R.;

Estate of Gregory Rombach,

Plaintiffs—Appellants,

versus

Joe Culpepper, individually and in his official capacity as Chief of

Police, City of Bogalusa, Louisiana; Scott Adams,

individually and in his official capacity as Warden, Bogalusa City

Jail; Wendy O’Quin Perrette, individually and in her official

capacity as Mayor, City of Bogalusa; Unidentified Parties,

individually and in their official capacities; Otis Taylor; Louis

Clark; Lesley Knight; Lisa Erwin; Leonard Powell;

Lashonda Payton; City of Bogalusa,

Defendants—Appellees.

Appeal from the United States District Court

for the Eastern District of Louisiana

USDC No. 2:16-CV-556

Before Clement, Haynes, and Wilson, Circuit Judges.

Per Curiam:*

*

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opinion should not be published and is not precedent except under the limited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.

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This qualified immunity case arises from the death of a state custody

inmate, Gregory Rombach, at the Bogalusa city jail. The Plaintiffs,

Rombach’s minor child and his estate, appeal the district court’s grant of

qualified immunity, and summary judgment, to the Defendants. We affirm

the district court’s dismissal of the Plaintiffs’ 42 U.S.C. § 1983 and municipal

liability claims. We further affirm the dismissal of the Plaintiffs’ state law

claims against the Defendants.

I.

A.

In the early morning hours of July 6, 2015, Bogalusa Police

Department (BPD) officers arrested Rombach for shoplifting from a Walmart

in Bogalusa, Louisiana. He was transported to the city jail where officers

learned that there was an outstanding arrest warrant for his failure to appear

in an unrelated criminal matter. During booking, officers conducted a

cursory medical assessment of Rombach. They discerned no visual signs of

illness, drug withdrawal, or need for immediate medical attention. Rombach

likewise reported no previous or current medical conditions, other than an

allergy to penicillin, and he denied regularly using alcohol or drugs.

That afternoon, Rombach appeared in the Bogalusa city court to

respond to his existing charge for failure to appear in the unrelated criminal

matter. The city court judge found Rombach in contempt and sentenced him

to serve fifteen days in jail or pay a $250.00 fine. The judge also continued

his arraignment for shoplifting until the following week.

At some point on July 6, Rombach admitted to jail personnel that he

was in withdrawal from heroin. In a declaration, Warden Scott Adams

testified that a nearby hospital “routinely explained to the jail facility . . . that

there is no real treatment of withdrawal symptoms and it is sufficient for the

jail to observe the inmate in withdrawal and provide plenty of hydration,

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aspirin, and malox-type [sic] products to assist the inmate.” Officers Louis

Clark and Lisa Erwin echoed Warden Adams’s withdrawal protocol: “The

only thing we give them now is Emetrol, Imodium, and ibuprofen.”

On the morning of July 9, Rombach was found dead in his jail cell. An

autopsy attributed his cause of death to a perforated duodenal ulcer (i.e., a

stomach ulcer). The coroner’s toxicology report indicated that Rombach

tested positive for amphetamine, methamphetamine, and opiates. No foul

play was suspected.

B.

Donna Rombach, on behalf of minor child D.A.R., and Rombach’s

estate sued BPD Chief of Police Joe Culpepper, Warden Scott Adams, Mayor

of Bogalusa Wendy O’Quin Perrette, an unnamed insurance company, and

unknown John and Jane Does “employed with the Bogalusa Police

Department and/or the City of Bogalusa and its jail” under 42 U.S.C. § 1983

and Louisiana state law for alleged violations of Rombach’s right to adequate

medical care. 1 They also sued Chief Culpepper, Warden Adams, and Mayor

O’Quin Perrette in their official capacities for their failure to train the

overseeing correctional officers.

One day later, the Plaintiffs filed an amended complaint to correct

dates alleged in the original complaint. Like the original complaint, the first

amended complaint pinned the Defendants for alleged violations of federal

and state law, both in their individual and official capacities.

1

Hereafter, the “Plaintiffs” include Donna Rombach, on behalf of D.A.R., and

Rombach’s estate. The “Defendants” refer both to Chief Culpepper, Warden Adams, and

Mayor O’Quin Perrette—the original parties—and the six correctional officers and the

City of Bogalusa (“the City”), eventually named in the operative second amended

complaint.

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Following two years of discovery, the initial Defendants moved for

summary judgment, contending they were entitled to qualified immunity on

the Plaintiffs’ individual capacity claims and that the official capacity claims

failed as a matter of law. The same day, the Plaintiffs moved for leave to file

a second amended complaint, seeking to substitute the unknown John and

Jane Does with named BPD correctional officers. The Plaintiffs then

responded in opposition to the motion for summary judgment.

The magistrate judge denied the Plaintiffs’ motion for leave to amend

without prejudice, noting that it could be re-urged if the trial was continued

by the district court. Shortly thereafter, the Plaintiffs filed a motion to

continue. The district court granted a continuance, permitting Plaintiffs

again to seek leave to file a second amended complaint to name the individual

correctional officers.

Given those rulings, the district court also denied the pending

summary judgment motion without prejudice against the unnamed John and

Jane Does. But the court granted summary judgment for Chief Culpepper,

Warden Adams, and Mayor O’Quin Perrette and dismissed the Plaintiffs’

§ 1983 individual capacity claims and related state law claims against those

parties with prejudice. The court denied summary judgment without

prejudice as to the Plaintiffs’ official capacity claims against Culpepper,

Adams, and O’Quin Perrette, finding that these claims were essentially a

municipal liability claim against the City under Monell v. Department of Social

Services of City of New York, 436 U.S. 658 (1978), that depended on the

liability of individual correctional officers who had not yet been named in the

action.

In due course, the Plaintiffs were granted leave to amend and filed

their second amended complaint. As the operative pleading, the second

amended complaint mirrored the first amended complaint, except that it

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replaced the unknown John and Jane Does with six BPD correctional

officers—Otis Taylor, Louis Clark, Lisa Erwin, Lesley Knight, Leonard

Powell, and Lashonda Payton—and added the City as a defendant.

The Plaintiffs’ amended pleading prompted the Defendants to file a

second motion for summary judgment. There, they sought summary

judgment of the Plaintiffs’ § 1983 individual capacity claims against the

individual officers, the § 1983 official capacity claims against Culpepper,

Adams, and O’Quin Perrette (i.e., the Monell claim against the City), the

state law negligence claims alleged against the individual officers, and the

state law respondeat superior claim against the City. The district court

granted the Defendants’ motion, dismissing all remaining claims. The court

found that (1) qualified immunity and state law immunity shielded the

correctional officers from the Plaintiffs’ federal and state law individual

capacity claims, and (2) the Plaintiffs failed to prove that Warden Adams’s

drug withdrawal policy was deficient or that jail personnel violated

Rombach’s constitutional rights, such that Plaintiffs’ Monell claim against

the City lacked merit. The Plaintiffs appealed.

II.

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 as a matter of law.” Fed. R. Civ. P. 56(a). In applying this

familiar rule, a court “inherently makes two separate findings.” Roque v.

Harvel, 993 F.3d 325, 332 (5th Cir. 2021). First, the court determines

“whether there are genuine fact disputes,” and then, “whether those fact

disputes are material to the outcome of the case.” Id. (emphases added). The

doctrine of qualified immunity “alters the usual summary judgment burden

of proof.” Valderas v. City of Lubbock, 937 F.3d 384, 389 (5th Cir. 2019) (per

curiam), cert. denied, 140 S. Ct. 454 (2019). Once the defense is properly

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invoked, the burden shifts to the plaintiff to rebut it. Vincent v. City of

Sulphur, 805 F.3d 543, 547 (5th Cir. 2015). All facts and inferences are still

construed in the light most favorable to the nonmovant. Poole v. City of

Shreveport, 691 F.3d 624, 627 (5th Cir. 2012).

Because this appeal arises from a final judgment, we review the district

court’s determinations regarding qualified immunity and summary judgment

de novo, applying the “same standard as the district court.” Renfroe v.

Parker, 974 F.3d 594, 599 (5th Cir. 2020) (citations omitted), cert. denied, No.

20-1269, 2021 WL 1520838 (U.S. Apr. 19, 2021). 2 Even where we may

depart from the district court’s reasoning, “[we] may affirm the district court

on any grounds supported by the record and argued in the court below.”

Williams v. Banks, 956 F.3d 808, 811 (5th Cir. 2020) (alteration in original)

(citation omitted).

III.

The Plaintiffs challenge the district court’s entry of summary

judgment on several grounds. First, we address whether the doctrine of

qualified immunity shields the correctional officers from suit in their

individual capacities. After, we transition to the Plaintiffs’ municipal liability

claim against the City (i.e., the official capacity claims against Culpepper,

Adams, and O’Quin Perrette). And we end our discussion by reviewing

dismissal of the Plaintiffs’ state law claims. 3

2

Compare Renfroe, 974 F.3d at 599 (reviewing qualified immunity appeal from final

judgment using “same standard as the district court” (citations omitted)), with Roque, 993

F.3d at 332 (reviewing a qualified immunity interlocutory appeal for challenges to the

materiality of the fact issues but lacking jurisdiction to review the genuineness of the fact

issues), and Melton v. Phillips, 875 F.3d 256, 261 (5th Cir. 2017) (en banc) (same).

3

The Plaintiffs do not appear to challenge the district court’s conclusion that

qualified immunity applies to Chief Culpepper, Warden Adams, and Mayor O’Quin

Perrette in their individual capacities. To the extent that the Plaintiffs do not concede this

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A.

Qualified immunity protects government officials from civil liability if

“their conduct does not violate clearly established statutory or constitutional

rights of which a reasonable person would have known.” Pearson v. Callahan,

555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982)). Its aim is to harmonize “the need to hold public officials accountable

when they exercise power irresponsibly” with “the need to shield officials

from harassment, distraction, and liability when they perform their duties

reasonably.” Id. The defense “protects ‘all but the plainly incompetent or

those who knowingly violate the law.’” Mullenix v. Luna, 577 U.S. 7, 11

(2015) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)).

Two inquiries ensure its aim. First, a plaintiff must show an actor

violated a constitutional right; second, the plaintiff must prove that the

violated right was clearly established at the time of the alleged misconduct.

Pearson, 555 U.S. at 232; Morrow v. Meachum, 917 F.3d 870, 874 (5th Cir.

2019). “We can decide one question or both” in reviewing a judgment based

on qualified immunity, Morrow, 917 F.3d at 874; in this case, we discuss both

inquiries. 4

issue, the district court properly granted summary judgment as to these claims based on

qualified immunity. We see no evidence in the record sufficient to impute to the officials

the knowledge that Rombach was exposed to a substantial risk of harm. See Gobert v.

Caldwell, 463 F.3d 339, 345–46 (5th Cir. 2006).

4

Before Pearson, the Court in Saucier v. Katz, 533 U.S. 194, 201 (2001) mandated

the two-step inquiry for resolving government officials’ qualified immunity claims. But see

Pearson, 555 U.S. at 236 (“Although we now hold that the Saucier protocol should not be

regarded as mandatory in all cases, we continue to recognize that it is often beneficial.”);

see also Roque, 993 F.3d at 332 (“[W]e have repeatedly emphasized that there is value in

addressing both questions ‘to develop robust case law on the scope of constitutional

rights.’” (quoting Joseph v. Bartlett, 981 F.3d 319, 331 n.40 (5th Cir. 2020))).

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1.

First, we determine whether the Plaintiffs have shown facts that

“make out a violation of a constitutional right.” Pearson, 555 U.S. at 232

(citing Fed. R. Civ. P. 50, 56); see also Hope v. Pelzer, 536 U.S. 730, 736

(2002). Under the Eighth Amendment, “[t]he unnecessary and wanton

infliction of pain . . . constitutes cruel and unusual punishment[.]” Hope, 536

U.S. at 737 (citation omitted). Inadequate inmate medical care may rise to

an Eighth Amendment violation, but for it to do so, a prison official must act

with “deliberate indifference” to the “serious medical needs of prisoners.”

Estelle v. Gamble, 429 U.S. 97, 104 (1976). Since Estelle, the Supreme Court

has clarified that a prison official “must both be aware of facts from which

the inference could be drawn that a substantial risk of serious harm exists,”

and the official “must also draw the inference.” Farmer v. Brennan, 511 U.S.

825, 837 (1994); Petzold v. Rostollan, 946 F.3d 242, 249 (5th Cir. 2019). 5 Re-

stated, a plaintiff must prove “objective exposure to a substantial risk of

serious harm,” Gobert, 463 F.3d at 345,—that is, the existence of a serious

medical need, id. at 349 n.30; the official’s subjective knowledge of his

substantial risk, Farmer, 511 U.S. at 837; and the official “disregard[ed] that

risk by failing to take reasonable measures to abate it.” Id.

In this case, the district court found that “there is no evidence

establishing that any particular jail employee defendant knew that Rombach

5

Because Farmer requires prison officials to have subjective knowledge of a

prisoner’s substantial risk of serious harm, it follows that officials accused of deliberate

indifference may rebut a plaintiff’s claim by showing that “they did not know of the

underlying facts indicating a sufficiently substantial danger and that they were therefore

unaware of a danger, or that they knew the underlying facts but believed (albeit unsoundly)

that the risk to which the facts gave rise was insubstantial or nonexistent.” Farmer, 511

U.S. at 844. “[P]rison officials who act reasonably cannot be found liable under the Cruel

and Unusual Punishments Clause.” Id. at 845.

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may have been suffering from acute heroin withdrawal symptoms—much

less the perforated ulcer that caused his death.” The court continued: “Nor

is there any evidence that any particular jail employee defendant drew the

inference that Rombach had a serious medical need.” Those findings are

supported by the record, and we agree with the district court that the

evidence is insufficient to demonstrate that the denial of medical care in this

case violated the Eighth Amendment. 6

The Plaintiffs assert that the individual officers were cognizant of

Rombach’s “significant symptoms” and nonetheless ignored his requests for

medical attention. The Defendants counter that, although Rombach

eventually notified the correctional officers that he was withdrawing from

heroin, he initially denied using drugs or alcohol, and the officers were

unaware of any resulting substantial risk of serious harm to Rombach. They

likewise were unaware that Rombach was suffering from a perforated ulcer,

which is the ailment determined to have caused his death.

We start with Officers Payton and Powell. 7 Payton worked the night

shift with Officer Clark on July 8. The record evinces that she inspected the

6

A state-custody convicted prisoner’s constitutional rights emanate from the

Eighth Amendment’s guarantee against cruel and unusual punishment, Estelle, 429 U.S. at

104, and a pretrial detainee’s rights arise from the due process guarantees of the Fourteenth

Amendment. Bell v. Wolfish, 441 U.S. 520, 535–37 (1979). Perhaps because Rombach was

imprisoned both as a pretrial detainee (as to the shoplifting charge) and post-conviction

inmate (as to his failure to appear) at the time of his death, it is unclear from the parties’

briefs and the record whether the Plaintiffs seek redress under the Eighth or the Fourteenth

Amendment. Regardless, this court has consistently held, at least in the context of allegedly

inadequate medical care, that the Eighth Amendment’s subjective deliberate indifference

standard applies equally to pretrial detainees traveling under the Fourteenth Amendment.

See, e.g., Aguirre v. City of San Antonio, 995 F.3d 395, 420 (5th Cir. 2021); Hare v. City of

Corinth, 74 F.3d 633, 648–50 (5th Cir. 1996) (en banc).

7

The Plaintiffs’ briefs treat the correctional officers’ actions collectively rather

than individually. The Defendants first noted this mistake in their second motion for

summary judgment. But the district court appears to have done the same in its second

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inmates’ cells at 9:00 p.m. and 10:00 p.m. that night. Yet there is no record

evidence showing that Payton communicated with Rombach during his brief

incarceration, that she specifically knew Rombach was suffering from heroin

withdrawal (or a perforated ulcer), that she refused to treat him, or that she

ignored his complaints. As to Powell, the record details even less. Taking

their allegations as true, the Plaintiffs failed to establish any constitutional

violation by those officers. See Hope, 536 U.S. at 736.

While a closer call, we reach the same conclusion regarding Officers

Taylor, Clark, Erwin, and Knight. In a declaration attached to the Plaintiffs’

response in opposition to the Defendants’ first motion for summary

judgment, another inmate, Christopher Flot, declared that he “personally

heard [Rombach] tell Mr. Otis [Taylor], Mr. L[oui]s [Clark], and Ms.

[Lesley] Knight that he did not feel well and [that] he wanted to go to the

hospital.” Flot further declared, “I personally told Mr. Otis, Mr. L[oui]s,

and Ms. Knight that [Rombach] did not feel well, was not eating[,] and was

vomiting[,] and he needed a doctor.”

In deposition testimony, Flot provided additional details concerning

Rombach’s interactions with jail personnel. He stated that he heard

Rombach tell Clark that “he needed to go to the hospital” on July 7.

According to Flot, Rombach said, “I’m detoxing. I need to go to the hospital

and get some medicine or where they can do something for me.” In response,

Clark allegedly “told [Rombach] he wasn’t going nowhere from [t]here, he

summary judgment order. An officer-by-officer analysis is necessary when determining

whether any officer acted with deliberate indifference to a prisoner’s serious medical needs.

See Taylor v. Riojas, 141 S. Ct. 52, 54 (2020) (per curiam); see also Carroll v. Ellington, 800

F.3d 154, 174 (5th Cir. 2015) (“[W]e examine each individual’s entitlement to qualified

immunity separately . . . .” (internal quotation marks and citation omitted)). Regardless,

conducting such an analysis, we conclude that each officer is entitled to qualified immunity.

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wasn’t going to the doctor, he wasn’t going to do nothing, he was just going

to have to sit up in there and suffer.” Flot testified that Rombach reiterated

his distress to Clark on July 8. In the second instance, Rombach allegedly

stated that he was feeling badly and that he needed medication for

constipation.

Flot’s testimony is at least somewhat corroborated by the record. In

her deposition, Knight testified that she treated Rombach’s constipation with

castor oil because “[Rombach] . . . was going through withdrawals and was

having trouble using the restroom.” Further, Erwin explained that she

moved Rombach to a padded cell because he “kept beating on the door and

hollering due to heroin withdrawals.” Finally, Adams attested that

“Rombach admitted to the jail personnel that he was withdrawing from

heroin.”

Despite this evidence, we are unconvinced that the Plaintiffs have

shown that any of these officers was deliberately indifferent to Rombach’s

medical needs. See Williams, 956 F.3d at 811 (“[D]eliberate indifference

cannot be inferred merely from a negligent or even a grossly negligent

response to a substantial risk of serious harm.” (citations omitted)).

Rombach completed a medical information sheet on the morning he was

arrested. He stated there that he had not “recently been hospitalized or

treated by a doctor”; he did not “regularly use alcohol or street drugs”; he

had no “problems when [he] stop[ped] drinking or using drugs”; and he had

no “other medical problems.” While incarcerated, Rombach separately

spoke to his father, mother, and brother on the phone. On each occasion,

Rombach never conveyed that he needed medical attention or that he had

requested medical care from jail personnel. Further, while the record

indicates that Rombach communicated to Taylor, Clark, Erwin, and Knight

that he was feeling unwell (i.e., not eating, not drinking water, constipated,

and vomiting) due to his drug withdrawal, it is also unrefuted that when

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officers questioned Rombach about his withdrawal symptoms while he was

held in the padded cell, he told them that “he was fine” and he “requested

to go back to his cell.” Finally, Rombach’s autopsy attributed his cause of

death to a perforated stomach ulcer. Notably, it is undisputed that neither

Rombach, nor his family, nor, critically, the jail personnel were aware of this

condition.

Based on this summary judgment record, the correctional officers’

actions do not constitute “deliberate indifference” to Rombach’s “serious

medical needs,” Estelle, 429 U.S. at 104, and thus do not rise to an

“unnecessary and wanton infliction of pain” cognizable under the Eighth

Amendment, Hope, 536 U.S. at 737. Qualified immunity shields them from

suit.

2.

Even if the Plaintiffs’ allegations met the first prong of the qualified

immunity analysis by showing that the officers violated Rombach’s Eighth

Amendment rights, the Plaintiffs would be unable to satisfy the second, that

“the right at issue was ‘clearly established’ at the time of [Defendants’]

alleged misconduct.” Pearson, 555 U.S. at 232 (quoting Saucier, 533 U.S. at

201); see also Petzold, 946 F.3d at 255. A right is “clearly established” if the

contours of that right are so “sufficiently clear” that “a reasonable official

would understand what he is doing violates that right.” Hope, 536 U.S. at 739

(citation omitted); Mullenix, 577 U.S. at 11; see also Brauner v. Coody, 793 F.3d

493, 497 (5th Cir. 2015) (“To determine that an official is not entitled to

qualified immunity, the court must find that every reasonable officer would

have understood that the alleged conduct violated a clearly established

constitutional right.” (emphasis in original) (citation omitted)). The chief

focus of the second element of the test is “to ensure that before they are

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subjected to suit, officers are on notice that their conduct is unlawful.” Hope,

536 U.S. at 739 (citation omitted).

There are two ways a plaintiff may show that an alleged right is clearly

established. First, “the plaintiff may identify a case or body of relevant case

law in which an officer acting under similar circumstances was held to have

violated the Constitution.” Batyukova v. Doege, 994 F.3d 717, 726 (5th Cir.

2021) (cleaned up). “This approach ‘do[es] not require a case directly on

point,’ but ‘existing precedent must have placed the statutory or

constitutional question beyond debate.’” Id. (alteration in original) (quoting

Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)). Alternatively, the plaintiff may

demonstrate that “the unlawfulness of the officer’s conduct is sufficiently

clear even though existing precedent does not address similar

circumstances.” Id. (quoting District of Columbia v. Wesby, 138 S. Ct. 577,

590 (2018)). This second approach is reserved for only rare, “obvious”

cases. Brosseau v. Haugen, 543 U.S. 194, 199 (2004).

The Plaintiffs assert that the district court erred by determining that,

even if an inmate’s drug withdrawal “may be” a “serious medical need” in

some cases under clearly established law, Plaintiffs failed to “present[]

adequate summary-judgment evidence that any of the jail employee

[D]efendants were deliberately indifferent to that need.” Plaintiffs contend

that instead, clearly established law required medical treatment for

Rombach’s symptoms. Cf. Gobert, 436 F.3d at 345 n.12 (“A serious medical

need is one for which treatment has been recommended or for which the need

is so apparent that even laymen would recognize that care is required.”

(citation omitted)). In support of their proposition, the Plaintiffs point to

Quatroy v. Jefferson Parish Sheriff’s Office, Nos. 04-451, 04-1425, 2009 WL

1380196 (E.D. La. May 14, 2009), and Thompson v. Upshur County, 245 F.3d

447 (5th Cir. 2001).

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In Quatroy, the district court recognized that the plaintiff’s drug

withdrawal constituted a serious medical need because the symptoms that

caused his death “were obviously serious” (i.e., “multiple seizures,”

“vomit[ing] blood multiple times,” and “defecat[ing] on himself”).

Quatroy, 2009 WL 1380196, at *9. Somewhat similarly, this court held in

Thompson that “delirium tremens” (i.e., severe alcohol withdrawal)

constituted a “serious medical need” under clearly established law. 245 F.3d

at 457–58 (collecting cases).

We are unpersuaded, however, that Quatroy and Thompson compel

this court to presume that drug withdrawal constitutes a serious medical need

in every case. Cf. City & Cnty. of S.F. v. Sheehan, 575 U.S. 600, 613 (2015)

(“Qualified immunity is no immunity at all if ‘clearly established’ law can

simply be defined as the right to be free from unreasonable searches and

seizures.”). In fact, the Supreme Court has counseled this court against

drawing such a general line. See al-Kidd, 563 U.S. at 742 (“We have

repeatedly told courts . . . not to define clearly established law at a high level

of generality.”). Instead, “[t]he dispositive question is whether the violative

nature of particular conduct is clearly established.” Mullenix, 577 U.S. at 12

(emphasis in original) (internal quotation marks and citation omitted).

Notwithstanding, the Plaintiffs contend that the officers’ actions were

objectively unreasonable in light of clearly established law. For support, the

Plaintiffs rely on Thompson and point to Rodrigue v. Grayson, 557 F. App’x

341, 342 (5th Cir. 2014). As noted, the Thompson court evaluated whether

prison officials’ delay and inaction toward an inmate’s severe alcohol

withdrawal violated clearly established law. 245 F.3d at 459. As to one

officer, specifically, the court recounted her awareness and response to

Thompson’s withdrawal symptoms. See id. at 463–64. The main point was

that the officer knew Thompson was severely intoxicated at the time of arrest

(i.e., a 0.348% blood alcohol level); he was also “shaking, sweating profusely,

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and hallucinating” while incarcerated: “Specifically, Thompson saw snakes

coming out of the walls, requested a screwdriver so he could build a house,

and believed he was at a barbeque in Gladewater, Texas.” Id. at 452–454,

463–64. Thompson’s condition caused him to injure himself in his cell. Id.

at 454, 463. Given those facts, this court denied the officer qualified

immunity because “all reasonable jailers would have recognized the

constitutional obligation to summon medical assistance well before

Thompson died[.]” Id. at 464.

In Rodrigue, a non-precedential case, an inmate incarcerated in state

custody lodged five verbal or written requests for emergency medical

services. 557 F. App’x at 342. In his requests, Rodrigue repeatedly

complained of abdominal pain, vomiting, nausea, and constipation-like

symptoms. Id. On each occasion, the nurse employed at the detention center

visited with Rodrigue and treated him with over-the-counter medication. Id.

On the eleventh day, with his pains persisting, the nurse authorized

Rodrigue’s transportation to the local hospital, where Rodrigue was

diagnosed with a “ruptured or perforated appendix.” Id.

Following recovery, Rodrigue filed a civil rights suit against the

attending nurse and a correctional officer. Id. at 342–43. The district court

denied the defendants qualified immunity, and this court affirmed. Id. at 343,

346. In sum, we held that the defendants knew of Rodrigue’s serious medical

condition, yet ignored it: “[T]he continuous and intense nature of

Rodrigue’s complaints of vomiting and abdominal pain were simply

ignored[,]” and “[a]ny reasonable person in [the defendants’] position

would have known that ignoring Rodrigue’s complaints in light of his medical

situation would be a violation of his rights under the Eighth Amendment.”

Id. at 347.

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But Thompson and Rodrigue are easily distinguishable from the present

case. Neither confronts an inmate suffering from heroin withdrawal coupled

with an undiscovered perforated stomach ulcer. The inmates’ conditions in

Thompson and Rodrigue were continuous, acute, and observed. By contrast,

there is no specific evidence showing that any officer witnessed Rombach

vomiting or struggling to eat. Additionally, Rombach was neither

hallucinating, nor seizing, nor injuring himself. Cf. Thompson, 245 F.3d at

452–54. Moreover, the relevant time frame in the present case spanned

roughly seventy-two hours. Cf. Rodrigue, 557 F. App’x at 342. In that time,

it is alleged Rombach verbally requested medical attention twice. However,

the record also includes unrefuted testimony that when officers questioned

Rombach about his drug withdrawal, he replied that “he was fine.” And

Rombach stated on his intake forms that he was not using alcohol or drugs,

he was not in withdrawal, and he did not need medical attention. He also did

not appear intoxicated or under the influence at the time of his arrest, and the

record supports that the officers followed the local hospital’s advice

concerning proper treatment of withdrawal symptoms.

“[W]hen the defendant moves for summary judgment based on

qualified immunity, it is the plaintiff’s burden to demonstrate that all

reasonable officials similarly situated would have then known that the alleged

acts of the defendants violated the United States Constitution.” Thompson,

245 F.3d at 459–60 (citation omitted). Given the materially unrefuted

evidence, we cannot conclude that, in the light of clearly established law,

every reasonable correctional officer would have summoned medical

assistance before Rombach’s death. 8 Therefore, we affirm the district

8

Our conclusion holds irrespective of whether medical assistance for heroin

withdrawal would have (or would not have) discovered Rombach’s perforated stomach

ulcer.

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court’s grant of qualified immunity, and thus summary judgment, in favor of

Taylor, Clark, Knight, Erwin, Powell, and Payton.

B.

The Plaintiffs next challenge the City’s policy for treating inmates in

withdrawal. The district court concluded that the Plaintiffs failed to prove

that the policy was deficient or that an underlying constitutional violation

occurred. We agree and affirm the district court on this issue.

A plaintiff can hold a municipality liable for violating a person’s

constitutional rights under § 1983. See Monell, 436 U.S. at 690. To do so, a

plaintiff must prove three elements: a policymaker; an official policy or

custom; and a violation of constitutional rights whose moving force is the

policy or custom. See Piotrowski v. City of Houston, 237 F.3d 567, 578 (5th Cir.

2001) (citing Monell, 436 U.S. at 694). These elements exist “to prevent a

collapse of the municipal liability inquiry into a respondeat superior

analysis.” Zarnow v. City of Wichita Falls, 614 F.3d 161, 167 (5th Cir. 2010).

Assuming arguendo that the Plaintiffs identified the proper

policymaker (Warden Adams) and demonstrated that the withdrawal

protocol—“over-the-counter med[ications] and water as opposed to

providing access to actual medical care from medical professionals”—was in

fact the jail’s official policy or custom for treating inmates in withdrawal, the

third element nonetheless proves fatal to the Plaintiffs’ Monell claim. “To

hold a municipality accountable for a violation of constitutional rights, a

plaintiff must show: (1) that the municipal employee[s] violated his clearly

established constitutional rights with subjective deliberate indifference; and

(2) that this violation resulted from a municipal policy or custom adopted and

maintained with objective deliberate indifference.” Olabisiomotosho v. City of

Houston, 185 F.3d 521, 528–29 (5th Cir. 1999). As discussed above, the

officers did not violate any clearly established Eighth Amendment rights, and

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the summary judgment evidence fails to establish that the alleged policy was

adopted or maintained with objective indifference. Consequently, the

Plaintiffs’ official capacity claims against the Defendants (i.e., the Monell

claim against the City) fail, and summary judgment was proper.

C.

Finally, Plaintiffs challenge the district court’s dismissal of their state

law negligence claims against Chief Culpepper, Warden Adams, Mayor

O’Quin Perrette, and the six correctional officers. The Plaintiffs also

contend the district court erred by dismissing their state law respondeat

superior claims against the City, Culpepper, Adams, and O’Quin Perrette.

We affirm the district court in all respects.

1.

The Plaintiffs’ state law negligence claims center on the Defendants’

alleged liability under Louisiana Civil Code articles 2315, 2315.1, and 2316.

The district court held that Culpepper, Adams, O’Quin Perrette, and the

individual officers were shielded from the these claims under Louisiana’s

qualified immunity protections. See La. Stat. Ann. § 9:2798.1. We

agree.

The relevant Louisiana statute provides:

A. As used in this Section, “public entity” means and includes

the state and any of its branches, departments, offices,

agencies, boards, commissions, instrumentalities, officers,

officials, employees, and political subdivisions and the

departments, offices, agencies, boards, commissions,

instrumentalities, officers, officials, and employees of such

political subdivisions.

B. Liability shall not be imposed on public entities or their

officers or employees based upon the exercise or performance

or the failure to exercise or perform their policymaking or

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discretionary acts when such acts are within the course and

scope of their lawful powers and duties.

C. The provisions of Subsection B of this Section are not

applicable:

(1) To acts or omissions which are not reasonably related to the

legitimate governmental objective for which the policymaking

or discretionary power exists; or

(2) To acts or omissions which constitute criminal, fraudulent,

malicious, intentional, willful, outrageous, reckless, or flagrant

misconduct.

Id. According to the Louisiana Supreme Court, this statute is “clear and

unambiguous,” and it immunizes public entities and their officers and

employees from tort claims based on “policymaking or discretionary acts

when such acts are within the course and scope of . . . lawful powers and

duties.” Gregor v. Argenot Great Cent. Ins. Co., 2002-1138, p. 12 (La.

5/20/03), 851 So. 2d 959, 967; see also Dominique v. Parish, 2019-0452, p. 10

(La. App. 1 Cir. 9/16/20), 313 So. 3d 307, 314 (“Specifically, under [this

statute], public entities, including sheriffs and sheriff’s deputies, are immune

from tort claims based on their policy-making decisions or discretionary acts

carried out within the course and scope of their employment.” (citation

omitted)); cf. La. Stat. Ann. § 9:2798.1(C)(2) (foreclosing immunity for

defendants whose acts or omissions “constitute criminal, fraudulent,

malicious, intentional, willful, outrageous, reckless, or flagrant

misconduct”). Whether the conduct at issue falls within the general

protections of the statute or is proscribed by the statute’s exceptions “is

purely a question of law[] and is within the province of the trial court to

determine at the summary judgment stage.” Simmons v. Hughes, 2019-1389,

p. 13 (La. App. 1 Cir. 11/25/20), No. 2019-CA-1389, 2020 WL 6948991, at

*6 (citations omitted), reh’g denied (Jan. 4, 2021).

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The general rule applies to Culpepper, Adams, and O’Quin Perrette.

The record is devoid of any evidence demonstrating that those officials were

personally involved in any decisions surrounding Rombach’s medical care,

albeit the evidence supports that Adams, as Warden, may have instituted a

medical care policy or custom at the city jail. Adams’s decisions in that

regard, however, fit squarely within the type of discretionary conduct that is

protected by Louisiana’s qualified immunity statute. Further, the Plaintiffs

have failed to present any genuine issue of material fact purporting to show

that the establishment of any jail policy as to inmate medical care originated

from “criminal, fraudulent, malicious, intentional, willful, outrageous,

reckless, or flagrant misconduct.” La. Stat. Ann. § 9:2798.1(C)(2). We

therefore affirm the district court’s dismissal of Plaintiffs’ state law

negligence claims against Culpepper, Adams, and O’Quin Perrette.

Turning to the individual correctional officers, the Plaintiffs assert

that because “medical [c]are is an obligation [under state law] and is not a

discretionary function,” the qualified immunity statute cannot apply. We

disagree. In Aucoin v. Larpenter, a state appellate court recently explained

that, although state law mandates the appointment of a physician or

healthcare provider to provide healthcare services to incarcerated persons,

and state law dictates minimum jail healthcare standards, the care

administered and provided to prisoners “involve[s] discretion.” 2020-0792,

p. 14 (La. App. 1 Cir. 4/16/21), No. 2020-CA-792, 2021 WL 1440202, at *9.

Analogously, although the individual officers in this case were allegedly

guided by at least a de facto policy or custom, the officers’ decisions to provide

(or not to provide) certain care to Rombach were ultimately the result of their

discretion. See id.; see also Dominique, 313 So. 3d at 316 (“There is a

presumption that when government employees exercise discretion given to

them by a statute or regulation, they are doing so based on the same policy

concerns that animate the controlling statute or regulation itself.” (citation

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omitted)). It therefore follows that the individual officers are protected by

Louisiana’s qualified immunity statute.

The Plaintiffs next contend that “the testimony of Mr. Flot, in which

he testified Mr. Rombach was told ‘he was just going to have to sit up there

and suffer’ raises questions of fact as to whether the actions of the

[Defendants] were acts or omissions” under Subsection (C)(2). Again, we

disagree. Cf. Simmons, 2020 WL 6948991, at *10 (finding, in the context of

excessive force, no genuine issue of material fact regarding whether the

defendants’ actions constituted misconduct under Subsection (C)(2)

because defendants “gain[ed] knowledge after-the-fact of plaintiff’s diabetic

condition and that a diabetic episode was the likely explanation of his erratic

actions”). As we have discussed, the evidence here does not indicate that

any of the officers’ actions constituted “criminal, fraudulent, malicious,

intentional, willful, outrageous, reckless, or flagrant misconduct” sufficient

to revoke immunity under § 9:2798.1(C)(2). 9 The district court’s summary

judgment on the state law claims against these Defendants is affirmed.

2.

Lastly, the Plaintiffs attempt to utilize the theory of respondeat

superior under Louisiana Civil Code article 2320 to establish liability on the

part of the City, Culpepper, Adams, and O’Quin Perrette for the correctional

officers’ allegedly negligent actions in providing medical care and

maintaining a de facto policy of inadequate treatment. The statute states that

“[m]asters and employers are answerable for the damage occasioned by their

9

Even if Flot’s declaration was sufficient to create a genuine dispute of fact as to

whether any of the officers’ conduct fell outside Louisiana’s qualified immunity

protections, it would create such an issue only for Officer Clark; there is no evidence

connecting the other officers to Clark’s particular statements alleged in Flot’s testimony.

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servants and overseers, in the exercise of the functions in which they are

employed.” La. Civ. Code Ann. art. 2320.

In dismissing this claim against Culpepper, Adams, and O’Quin

Perrette, the district court held that “[w]hile vicarious liability under a

respondeat superior theory is potentially viable under state law, the liable

party is the State, not the tortfeasor’s supervisors.” On appeal, the

Plaintiffs’ challenge to the district court’s conclusion consists of nothing

more than conclusory allegations insufficient to defeat summary judgment.

In their briefs, the Plaintiffs do not offer any argument or authority to support

their contention that the district court erred. See Fed. R. App. P.

28(a)(8)(A). We are therefore unpersuaded that the district court erred in

dismissing the respondeat superior claims against Culpepper, Adams, and

O’Quin Perrette.

And because we conclude the claims alleged against the officers fail, it

follows that the Plaintiffs’ respondeat superior claim against the City also

fails. The district court’s dismissal of Plaintiffs’ state law claims is affirmed.

IV.

In sum, we AFFIRM the district court’s dismissal of (1) the

Plaintiffs’ § 1983 claims against Culpepper, Adams, O’Quin Perrette, and

the six correctional officers in their individual capacities; (2) the Plaintiffs’

§ 1983 official capacity claims against Culpepper, Adams, O’Quin Perrette,

and the officers (i.e., the Monell claim against the City); (3) the Plaintiffs’

state law negligence claims against Culpepper, Adams, O’Quin Perrette, and

the officers in their individual capacities; and (4) the Plaintiffs’ state law

respondeat superior claims against Culpepper, Adams, and O’Quin Perrette

in their official capacities, and against the City.

AFFIRMED.

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