holding that 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.”
How later courts described this case
- holding that 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.”
- providing “In order to establish supervisor liability for constitutional violations committed by subordinate employees, plaintiff 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.”
- holding that a supervisory official may be held liable under section 1983 for implementing an unconstitutional policy that causally results in a constitutional injury
- recognizing that qualified immunity shields officials unless the plaintiff demonstrates the defendant violated a constitutional right that was “clearly established”
Written by the judges who cited it.
The opinion
Case: 09-60324 Document: 00511616902 Page: 1 Date Filed: 09/28/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
September 28, 2011
No. 09-60324 Lyle W. Cayce
Clerk
WILL TERRANCE PORTER,
Plaintiff–Appellee,
v.
CHRISTOPHER B EPPS, Individually and in his official capacity as the
Commissioner of the Mississippi Department of Corrections,
Defendant–Appellant.
Appeal from the United States District Court
for the Northern District of Mississippi
Before REAVLEY, PRADO, and OWEN, Circuit Judges.
EDWARD C. PRADO, Circuit Judge:
Defendant Christopher Epps, the Commissioner of the Mississippi
Department of Corrections (“MDOC”), appeals the district court’s denial of his
motion for judgment as a matter of law or, in the alternative, motion for a new
trial. The jury found Epps liable under 42 U.S.C. § 1983 for violating Will
Porter’s constitutional rights by unlawfully incarcerating him for fifteen months
beyond the expiration of his sentence. Because we find Epps is entitled to
qualified immunity, we reverse.
Case: 09-60324 Document: 00511616902 Page: 2 Date Filed: 09/28/2011
No. 09-60324
I. FACTUAL AND PROCEDURAL BACKGROUND
Porter received a five-year sentence after he was convicted under
Mississippi law for breaking into an automobile. The Mississippi trial court
suspended four years of Porter’s sentence and ordered him to serve one year in
the MDOC Intensive Supervision Program (“ISP”), which is also known as house
arrest. While on house arrest, Porter was arrested on suspicion of a
misdemeanor charge. Mack E. Cox, an ISP officer with MDOC, issued Porter a
Rule Violation Report (“RVR”). Porter was transported to an MDOC facility and
processed.
Stephanie Jones, a hearing officer for MDOC, conducted a disciplinary
hearing on the RVR. Jones determined that Porter violated the terms of the ISP
rules and regulations, and she referred her decision to the MDOC records
department so that Porter could be reclassified. The records department
determined that since Porter’s ISP had been revoked, he did not meet the
conditions entitling him to the suspension of the four years on his sentence.
Porter appealed the RVR through MDOC’s grievance procedure, and he was
denied relief at all three steps of that process. Porter then filed a motion for
post-conviction relief in Mississippi state court. That court ruled that MDOC did
not have the authority to reinstate an inmate’s suspended sentence and ordered
Porter to be released immediately.
Later, Porter filed suit in federal court under 42 U.S.C. § 1983, alleging
that he was falsely imprisoned for fifteen months beyond the expiration of the
sentence imposed upon him by the Mississippi trial court. All defendants were
dismissed, except for Epps. Porter alleged that Epps, as a policymaker for
MDOC, implemented the policies that led to the constitutional violations. Porter
also alleged that Epps was aware of the MDOC records department’s failure to
interpret sentencing orders correctly, took no steps to remedy this situation by
instituting procedural safeguards, training staff appropriately, or otherwise
2
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No. 09-60324
hiring competent individuals, and that Epps’s indifference resulted in Porter’s
unlawful incarceration.
Although Epps raised qualified immunity as an affirmative defense in his
answer, he did not raise qualified immunity in the motion to dismiss or the
motion for summary judgment. The motions argued that the defendants had
Eleventh Amendment immunity for the claims against them in their official
capacities and did not address the issue of immunity for the claims against them
in their individual capacities. Instead, the jury was instructed that it could not
find Epps liable if he had a reasonable belief that his actions did not violate
Porter’s constitutional rights and that “under the Doctrine of Qualified
Immunity, government officials performing discretionary functions generally are
shielded from liability for civil damages insofar as their conduct does not violate
clearly established statutory or constitutional rights of which a reasonable
person would have known.” The court also instructed the jury “that supervisory
officials such as the Defendant Commissioner Epps cannot be held liable under
42 U.S.C. Section 1983 for the actions of subordinates such as Mack Cox and
Stephanie Jones on any theory of vicarious liability or respondeat superior
liability,” but “[r]ather, the plaintiff must show that the conduct of the
supervisor, in this case, Mr. Epps, denied the plaintiff his constitutional rights.”
The jury returned a verdict for Porter and awarded him $250,000 in
damages. Epps then filed a motion for judgment as a matter of law or,
alternatively, a motion for new trial, in which he argued that he was entitled to
qualified immunity and that he was impermissibly found liable on a theory of
respondeat superior. The court denied the motion. It ruled that (1) the jury’s
determination that Epps was not entitled to qualified immunity was not
“contrary to the overwhelming weight of evidence or against reason,” and (2)
there was substantial evidence to support the jury’s verdict on grounds other
than respondeat superior—such as Epps was personally involved in reviewing
3
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No. 09-60324
Porter’s third-step ARP form or that Epps’s policies caused Porter’s
constitutional injury. This appeal followed.
II. STANDARD OF REVIEW
We review de novo the denial of a motion for judgment as a matter of law,
applying the same standard as the district court. Wackman v. Rubsamen, 602
F.3d 391, 399 (5th Cir. 2010). “The jury verdict must be upheld unless a
reasonable jury would not have a legally sufficient evidentiary basis to find for
the party on that issue.” Shepherd v. Dall. Cnty., 591 F.3d 445, 456 (5th Cir.
2009) (internal quotation marks and citation omitted). In reviewing the
sufficiency of the evidence, we “draw all reasonable inferences and resolve all
credibility determinations in the light most favorable to the nonmoving party.”
Travelers Cas. & Sur. Co. of Am. v. Ernst & Young LLP, 542 F.3d 475, 482 (5th
Cir. 2008) (internal quotation marks and citation omitted). We reverse “only if
the evidence points so strongly and so overwhelmingly in favor of the []moving
party that no reasonable juror could return a contrary verdict.” Id. (internal
quotation marks and citation omitted).1
III. DISCUSSION
A public official is entitled to qualified immunity unless the plaintiff
demonstrates that (1) the defendant violated the plaintiff’s constitutional rights
and (2) the defendant’s actions were objectively unreasonable in light of clearly
established law at the time of the violation. Freeman v. Gore, 483 F.3d 404,
1
The case cited in Travelers, Foradori v. Harris, 523 F.3d 477 (5th Cir. 2008), and
cases further back in the citation history, inexplicably and incorrectly state that the evidence
must be overwhelmingly in favor of the nonmoving party in order for the court to reverse a
denial of a Rule 50 motion. See Cousin v. Trans Union Corp., 246 F.3d 359, 366 (5th Cir. 2001)
(“When reviewing the denial of a motion for judgment as a matter of law, we will uphold a jury
verdict unless the facts and inferences point so strongly and so overwhelmingly in favor of one
party that reasonable men could not arrive at any verdict to the contrary.”) (case from which
the incorrect quotation in Travelers was originally derived). Because the movant is the party
challenging the jury verdict, the evidence must be so strongly in his favor that it warrants the
court overturning the jury’s verdict against him.
4
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No. 09-60324
410–11 (5th Cir. 2007). Qualified immunity questions should be resolved “at the
earliest possible stage in litigation.” Pearson v. Callahan, 555 U.S. 223, 232
(2009) (quoting Hunter v. Bryant, 502 U.S. 224, 227 (1991)) (internal quotation
marks omitted). But if the issue of qualified immunity is not decided before
trial, the defense of qualified immunity may be submitted to the jury, “which
must then determine the objective legal reasonableness of the [official’s] conduct”
by construing the facts in dispute. McCoy v. Hernandez, 203 F.3d 371, 376 (5th
Cir. 2000) (citing Snyder v. Trepagnier, 142 F.3d 791, 799 (5th Cir. 1998)).
Epps argues that his actions, if they violated Porter’s constitutional rights,
were not objectively unreasonable in light of clearly established law. “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.” Saucier v. Katz, 533 U.S. 194, 202
(2001), overruled in part on other grounds by Pearson, 555 U.S. at 236.
A. There is a Clearly Established Right to Timely Release from
Prison
Detention of a prisoner for over “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.” Douthit v. Jones, 619 F.2d 527, 532 (5th Cir. 1980).
Our precedent establishes that a jailer has a duty to ensure that inmates are
timely released from prison. We have explained that “[w]hile not a surety for the
legal correctness of a prisoner’s commitment, [a jailer] is most certainly under
an obligation, often statutory, to carry out the functions of his office. Those
functions include not only the duty to protect a prisoner, but also the duty to
effect his timely release.” Whirl v. Kern, 407 F.2d 781, 792 (5th Cir. 1969)
(internal citations and footnote omitted). We reaffirmed the jailer’s obligation
in this regard in Bryan v. Jones, 530 F.2d 1210 (5th Cir. 1976) (en banc), a case
in which a prisoner filed suit for damages under § 1983 for false imprisonment
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No. 09-60324
after he was held in prison for an additional month because the records were not
updated to reflect his release notice. Id. at 1212–13. There, the en banc court
recognized that, despite the defense of qualified immunity, “[i]f [the jailer]
negligently establishes a record keeping system in which errors of this kind are
likely, he will be held liable.” Id. at 1215. Thus, the issue is whether Epps’s
actions, in light of his duty to ensure Porter’s timely release from prison, were
objectively unreasonable.
B. No Reasonable Jury Could Have Found that Epps’s Conduct Was
Objectively Unreasonable
Porter’s § 1983 claim is predicated on Epps’s conduct in (1) failing to
promulgate adequate policies in the records department; (2) failing to train and
supervise the employees in the records department; and (3) denying Porter’s
third-step appeal. “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.” Gates v. Texas Dep’t of Prot. & Reg. Servs., 537 F.3d 404,
435 (5th Cir. 2008). “In order to establish supervisor liability for constitutional
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.” Rhyne v. Henderson Cnty., 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
6
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No. 09-60324
plaintiff’s rights; and (3) the failure to train or supervise amounts to deliberate
indifference.” Goodman v. Harris Cnty., 571 F.3d 388, 395 (5th Cir. 2009).
Liability for failure to promulgate policy and failure to train or supervise
both require that the defendant have acted with deliberate indifference. In Hare
v. City of Corinth, 135 F.3d 320 (5th Cir. 1998), we discussed the difficulty in
reconciling the deliberate indifference standard with the objective
reasonableness standard used in addressing qualified immunity. Id. at 327–28.
We explained that “[o]bviously, the analysis for objective reasonableness is
different from that for deliberate indifference . . . . Otherwise, a successful claim
of qualified immunity in this context would require defendants to demonstrate
that they prevail on the merits, thus rendering qualified immunity an empty
doctrine.” Id. at 328. We further noted that “the subjective deliberate
indifference standard serves only to demonstrate the clearly established law in
effect at the time of the incident.” Id. Here, we are concerned with qualified
immunity. Accordingly, we must consider whether Epps’s actions were
objectively unreasonable in light of the clearly established law that a prison
official must ensure an inmate’s timely release from prison and that such an
official may be liable for failure to promulgate policy or failure to train/supervise
if he acted with deliberate indifference to constitutional rights.
“‘[D]eliberate indifference’ is a stringent standard of fault, requiring proof
that a municipal actor disregarded a known or obvious consequence of his
action.” Connick v. Thompson, 131 S. Ct. 1350, 1360 (2011) (internal quotation
marks omitted, alteration in original) (quoting Bd. of Cnty. Comm’rs v. Brown,
520 U.S. 397, 409 (1997)). To establish that a state actor disregarded a known
or obvious consequence of his actions, 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. (citing Bryan Cnty., 520 U.S.
7
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at 407). “A pattern of similar constitutional violations by untrained employees
is ordinarily necessary to demonstrate deliberate indifference,” because
“[w]ithout notice that a course of training is deficient in a particular respect,
decisionmakers can hardly be said to have deliberately chosen a training
program that will cause violations of constitutional rights.” Id. (internal
quotation marks omitted). Without cabining failure-to-train claims in this
manner (or, logically, failure-to-promulgate-policy claims), a standard “less
stringent” than deliberate indifference would be employed, and “a failure-to-
train claim ‘would result in de facto respondeat superior liability.’” Id. (quoting
City of Canton v. Harris, 489 U.S. 378, 392 (1989)).
1. Epps’s Failure to Promulgate Policies
Porter first asserts that Epps is liable for failing to promulgate adequate
policies in the records department. The records department determines a
release date for a prisoner based on the sentencing order and the rules and
regulations of MDOC. Epps testified that he is responsible for implementing all
policies and procedures at MDOC.
A review of the record reveals that there was insufficient evidence to
support a jury finding that Epps’s failure to promulgate policy was objectively
unreasonable in light of clearly established law. The evidence did not show that
a reasonable person would have had actual or constructive notice that MDOC’s
policies with regard to the records department would result in instances of false
imprisonment. Epps’s testimony showed that there were policies in place with
regard to sentencing orders. MDOC had a records department in which staff
interpreted sentencing orders in accordance with training provided by attorneys.
Epps placed a lawyer in the department to further ensure the accuracy of the
interpretations. In addition, Epps testified that MDOC worked with judges to
make future sentencing orders more understandable.
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Porter presented no evidence showing that these policies, or the lack of
others, were unreasonable. Epps testified that he could not recall other
incidents in which persons had been kept beyond their sentences because of
records department errors, and Porter presented no evidence of similar false
imprisonments. There was no evidence that the records department had a
practice of reinstating suspended sentences. Further, Epps’s testimony that the
staff in the records department was not highly paid and that the positions had
a high turnover rate does not establish that his policies caused Porter’s injuries.
Epps did not determine the salary of records department staff, and thus any
problem attributable to low pay cannot be attributable to Epps. Moreover, the
staff, while low-paid, was trained. The mere fact that the employees were not
paid well does not show that instances of false imprisonment would be inevitable
under this structure.
In sum, no reasonable juror could determine that it was “obvious that the
likely consequence[]” of not adopting more specific policies in the records
department would be a deprivation of civil rights. While it is unfortunate that
the records department erred in interpreting the sentencing order for Porter,
this error does not support a finding that Epps’s policies involving the records
department were objectively unreasonable. Accordingly, Epps is entitled to
qualified immunity in this regard.
2. Epps’s Failure to Train/Supervise
There is insufficient evidence to support a finding that Epps’s training or
supervision of the employees in the records department was objectively
unreasonable. Epps testified that employees in the records department had been
trained and had been through orientation. He asserted that the employees in
the records department had attended training sessions with a lawyer “to ensure
that they better understand the orders.” Epps also stated that he instituted a
system in the records department by which records technicians advance levels
9
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No. 09-60324
after being trained for a certain number of years. Epps further testified about
training programs for the circuit judges: “[W]e train the judges and ask them to
put in the sentencing order exactly what they want us to do.” Also, Epps
explained that he “put lawyers in that department to try to help the staff [in
interpreting] sentencing orders from these different circuit judges.”
Porter presented no evidence to contradict Epps’s testimony. Without
more, the fact that an employee erred in one instance does not provide sufficient
evidence to show that Epps’s alleged actions in failing to train were objectively
unreasonable. Accordingly, Epps is entitled to qualified immunity on this issue.
3. Epps’s Involvement in Porter’s Third-Step Appeal
Porter also argues that Epps was personally involved in Porter’s unlawful
detention because his signature is on the form denying Porter’s third-step
appeal. Epps denies that he was personally involved in Epps’s unlawful
detention, and the lower court did not address whether Epps was entitled to
qualified immunity for this claim.
As an initial matter, the evidence is undisputed that Epps had for many
years delegated responsibility for evaluating third-step appeals to Deputy
Commissioner Emmett Sparkman. Sparkman—not Epps—signed Epps’s name
to the order denying Porter’s appeal. Porter offered no further evidence that
Epps was personally involved in denying his third-step appeal. Thus, Epps’s
own, direct actions with regard to Porter cannot be a basis of liability.
Moreover, Epps contends that the records department’s interpretation of
Porter’s sentencing order was reasonable, and this same argument extends to
the reasonableness of Epps’s alleged denial of Porter’s third-step appeal. Porter
was “sentenced to serve a term of FIVE (5) YEARS in an institution under the
supervision and control of the [MDOC].” The sentencing order stated,
the Court hereby suspends the execution of the above
sentence for a period of FOUR (4) YEARS, the
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No. 09-60324
suspension of this sentence to commence after the
Defendant has served ONE (1) YEAR in the
INTENSIVE SUPERVISION PROGRAM (HOUSE
ARREST) under the supervision and control of the
Department of Corrections, until the Court in term
time, or the Judge in vacation, shall alter, extend,
terminate or direct the enforcement of the above
sentence, and the suspension of said sentence is based
upon the following conditions . . . .
While the list of conditions included the condition that “Defendant shall
hereafter commit no offense against the laws of this or any State of the United
States or of the United States,” the list did not include completion of ISP.
Epps contends that it was objectively reasonable to interpret the
sentencing order to require completion of ISP prior to the suspension of Porter’s
sentence. Porter does not address this argument. In light of the language of the
sentencing order, the records department’s interpretation of that order was
objectively reasonable, even if the Mississippi court concluded that such an
interpretation was incorrect. Thus, Epps is entitled to qualified immunity to the
extent that Porter’s claim is based on Epps’s personal participation in the
unlawful detention.
IV. CONCLUSION
Because Epps is entitled to qualified immunity on Porter’s claims, we
reverse the district court.
REVERSE
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No. 09-60324
OWEN, Circuit Judge, concurring:
I concur in the opinion of the court, except to the extent that it might be
read as placing any reliance on this court’s decision in Bryan v. Jones.2
In this court’s en banc opinion in Bryan, we said more than thirty-five
years ago that a jailer could be held liable “[i]f he negligently establishes a
record keeping system in which errors [leading to continued incarceration after
charges were dismissed] are likely.”3 In light of subsequent Supreme Court
decisions,4 this is not a correct statement of the law.
As today’s opinion correctly notes, liability for failures to promulgate
policy, train, or supervise can only arise when the defendant acts with deliberate
indifference,5 a considerably higher standard than negligence.6 “[D]eliberate
indifference is a stringent standard of fault, requiring proof that a municipal
actor disregarded a known or obvious consequence of his action,”7 not merely a
likely one. The court’s opinion today properly applies current Supreme Court
precedent as the governing law. To the extent that Bryan is cited as establishing
a negligent standard, that is not the applicable standard, and it is not the
standard that the court actually applies.
* * *
With the foregoing explanation, I concur in the opinion of the court.
2
530 F.2d 1210 (5th Cir. 1976) (en banc).
3
Id. at 1215.
4
See, e.g., Connick v. Thompson, __ U.S. __, 131 S.Ct. 1350 (2011); Bd. of Comm’rs of
Bryan Cnty., Okla. v. Brown, 520 U.S. 397 (1997).
5
Ante, at 7.
6
Bryan Cnty., 520 U.S. at 407 (“A showing of simple or even heightened negligence will
not suffice.”).
7
Connick, 131 S.Ct. at 1360 (alteration in original) (emphasis added) (quoting Bryan
Cnty., 520 U.S. at 409) (internal quotation marks omitted).
12