Richardson v. Oldham

United States Court of Appeals,

Fifth Circuit.

No. 93-4140.

Willie RICHARDSON, and Rose Richardson, Plaintiffs-Appellants,

v.

Bill OLDHAM, Sheriff of Harrison County, Tex., et al.,

Defendants,

Harrison County, Texas, et al., Defendants-Appellees.

Jan. 28, 1994.

Appeal from the United States District Court for the Eastern

District of Texas.

Before WISDOM, HIGGINBOTHAM, and JONES, Circuit Judges.

WISDOM, Circuit Judge.

Plaintiffs/appellants Willie and Rose Richardson allege that

the defendants/appellees, law enforcement officers and their

municipal employer, violated the Fourth Amendment when they

searched the Richardsons' home on May 14, 1991. The district court

granted summary judgment for the defendants after striking much of

the plaintiffs' summary judgment evidence.1 The Richardsons

appealed to this Court. We hold that (1) the plaintiffs' Notice of

Appeal was timely filed and vested this Court with jurisdiction;

(2) while some of the district court's evidentiary rulings were

erroneous, none rose to the level of harmful error; (3) the

district court correctly ruled that defendant/appellee Tommy

Harrell was entitled to qualified immunity; and (4) the district

court correctly held that the plaintiffs/appellants had produced

insufficient evidence of a municipal custom or policy to survive

1

Richardson v. Oldham, 811 F.Supp. 1186 (E.D.Tex.1992).

summary judgment for the remaining defendants. We AFFIRM.

I.

A. The Parties

Willie and Rose Richardson are an African-American couple in

their mid-fifties. At all times relevant to this case, they

resided in Harrison County, Texas, at one of four houses located at

Route 3, Box 628 off a then-unnamed dirt road which has since been

christened Frierson. All four houses shared the address "Route 3,

Box 628". To distinguish each house from its neighbors, each house

bore an identifying letter of the alphabet, "A" through "D", but

those letters were not visible from the road.

Harrison County Sheriff Bill Oldham's name still appears in

the style of this case, but he is no longer a party to this

litigation. The Richardsons' claims against Oldham were dismissed

with prejudice on July 9, 1992.2

Defendant/appellee Harrison County employed the two other

defendants/appellees remaining in this case. Defendant/appellee

Tommy Harrell was a law enforcement employee of the County at the

time this lawsuit began; he has since died and the Richardsons

have substituted his estate. Harrell is sued in his official and

individual capacities. Defendant/appellee Rick Berry was the

Harrison County District Attorney and Harrell's superior at the

time this lawsuit arose. Berry is sued only in his official

capacity.

B. The Investigation

In 1991, Harrell conducted a narcotics investigation which led

2

2 Rec. 409-11.

him to suspect that someone who lived on the Richardsons' street

was selling marijuana. Harrell presented a county judge with an

affidavit of a confidential informant. The affidavit described a

purported marijuana sale by an African-American female whose

description does not fit any party to this case.3

Based on the affidavit, Harrell obtained a search warrant to

search a house identified as "Route 3, Box 628" and described as "a

single family residence of wood frame construction.... being a

light colored (off white) colored structure having double entry

front doors".4 Neither the warrant nor the affidavit itself

specified which letter of the alphabet, "A" through "D", identified

the house to be searched. Two of the four houses at Route 3, Box

628 fit the description given in the informant's affidavit: the

Richardsons' home and another house located across the street.

C. The Search and its Aftermath

Between 11:00 p.m. and midnight on May 14, 1991, Harrell and

some Harrison County Sheriff's deputies broke down the front door

of the Richardsons' home and burst in. The Richardsons were asleep

in their bedroom at the time. Harrell and his men roused the

Richardsons from bed and proceeded to search their home for one to

two hours. The search caused the Richardsons great distress and

embarrassment. Some deputies watched Mrs. Richardson use the

bathroom, and the stress of the search so upset Mr. Richardson that

3

The informant's affidavit described a meeting with a female

who was shorter, weighed fifty to sixty pounds less, was lighter

in complexion, and had a different hair color and style from Rose

Richardson, the only black female involved in this case.

4

2 Rec. 400.

he had to lie down.

Plainly, the defendants searched the wrong house. They

recovered no marijuana or other contraband from the search of the

Richardsons' home. They made no arrests and no prosecutions

resulted from the search. The following month, Harrison County

officers searched another of the four homes located at Route 3, Box

628. This time they apparently picked the correct house, found

some marijuana, and made an arrest.

D. The Lawsuit

Had their consequences been less serious, the events just

described might have provided a fitting script for a Keystone Kops

comedy. Instead, the defendants soon found themselves facing the

Richardsons' lawsuit under 42 U.S.C. § 1983 charging them with

assorted constitutional violations in obtaining the warrant and

searching the Richardsons' home. The district court, after

striking parts of several affidavits submitted by the Richardsons,

granted summary judgment for all defendants. We review the

district court's evidentiary rulings for abuse of discretion and

its granting of summary judgment de novo, taking the evidence in

the light most favorable to the Richardsons.

II.

Before proceeding to the merits we must satisfy ourselves of

our jurisdiction to decide this case. The appellees contend that

we lack jurisdiction over defendants Berry and Harrison County.

The appellants have not discussed the jurisdictional question and

were unprepared at oral argument to respond to the appellees'

position. We hold that we have jurisdiction over all three

defendants.

Fed.R.App.P. 4(a)(1) requires that notices of appeal to this

Court be filed within thirty days of the entry of judgment in the

district court. That thirty-day clock is tolled, however, during

the pendency of certain motions under Fed.R.Civ.P. 59. One such

Rule 59 motion is the motion to alter or amend a judgment,5 of

which one variety is the "motion for reconsideration".6 The filing

of a motion for reconsideration has two effects: First, any notice

of appeal is a nullity if it is filed before the district court

rules on the motion for reconsideration,7 and second, the

thirty-day clock for filing a notice of appeal to this Court does

not begin to run until the district court rules on the motion for

reconsideration.8

The district court entered summary judgment in favor of all

the defendants in this case on December 16, 1992. On December 28,

1992, the Richardsons filed a timely motion for reconsideration of

the district court's judgment as to defendant Tommy Harrell.9 The

5

Fed.R.Civ.P. 59(e).

6

See, e.g., Charles L.M. v. Northeast Indep. Sch. Dist., 884

F.2d 869, 870 (5th Cir.1989); Benson v. Bearb, 807 F.2d 1228,

1229 (5th Cir.1987) (per curiam).

7

"A notice of appeal filed before the disposition of any of

the above motions [including Rule 59 motions] shall have no

effect". Fed.R.App. P. 4(a)(4); see, e.g., Treuter v. Kaufman

County, Tex., 864 F.2d 1139, 1142 (5th Cir.1989).

8

Fed.R.App. P. 4(a)(4); see, e.g., Harrell v. Dixon Bay

Transp. Co., 718 F.2d 123, 126-27 (5th Cir.1983).

9

Although served 12 calendar days after the entry of

judgment, this motion was nonetheless served within the ten days

required by Fed.R.Civ.P. 59(e), because of the requirement of

Fed.R.Civ.P. 6(a) that intervening weekends be excluded from the

calculation. Because the motion was served within ten days, we

district court denied their motion on January 15, 1993. The

Richardsons did not file a motion for reconsideration of the

district court's judgment as to defendants Berry or Harrison

County. The Richardsons filed their notice of appeal to this Court

on February 5, 1993—within thirty days after the denial of their

motion for reconsideration, but more than thirty days after the

entry of judgment on December 28, 1992.

Berry and Harrison County contend that because they were not

named in the Richardsons' motion for reconsideration the thirty-day

clock for taking an appeal was never tolled as to them, and

therefore this Court lacks jurisdiction over the Richardsons'

appeal of the summary judgment in Berry and Harrison County's

favor. We disagree.

As noted above, a timely motion for reconsideration vitiates

any notice of appeal filed while the motion for reconsideration is

still pending in the district court. While their motion for

reconsideration as to Harrell was pending, the Richardsons could

not have appealed the district court's ruling as to Berry and

Harrison county to this Court. The appellees ask us to conclude

that the Richardsons waived their right to appeal the district

court's adverse rulings as to Berry and Harrison County by failing

to include Berry and Harrison County in their motion for

reconsideration. We decline to do so. Filing a Rule 59 motion is

will treat it as a motion under Rule 59. See Goodman v. Lee, 988

F.2d 619, 622-23 (5th Cir.1993) (per curiam). We note for

counsel's benefit, however, that the newly revised Fed.R.Civ.P.

59(e) requires filing, not merely serving, the motion within ten

days. See 150 F.R.D. 399.

not a prerequisite to taking an appeal,10 as the appellees would

have us hold.

The rule we state today is a simple one and is consistent with

our Court's precedents even though none of them stated it

explicitly. We hold that a timely Rule 59(e) motion for

reconsideration of a judgment as to one defendant tolls the

thirty-day clock for taking an appeal not only as to that

defendant, but also as to all other defendants whose liability was

determined in the judgment the plaintiff's Rule 59(e) motion seeks

to amend.11 Accordingly, the Richardsons' Rule 59(e) motion as to

Harrell tolled the appeal clock not only as to Harrell, but also as

to Berry and Harrison County. Therefore, their appeal as to all

three defendants was timely filed, and we have jurisdiction to hear

it.

III.

We turn next to the district court's evidentiary rulings. The

district court's summary judgment for the defendants was based on

a summary judgment record from which much of the plaintiffs'

evidence had been excluded. Our review of the district court's

evidentiary rulings has persuaded us that errors were committed,

but none were of such magnitude as to have affected the substantial

10

See 6A James W. Moore & Jo D. Lucas, Moore's Federal

Practice ¶ 59.14 (2d ed. 1993).

11

We have previously held, without explicit discussion of

the matter, that a plaintiff's motion for reconsideration as to

one defendant tolled the appeals clock even as to defendants not

named in the motion. See, e.g., Willie v. Continental Oil Co.,

784 F.2d 706 (5th Cir.1986) (en banc), dismissing appeal of 746

F.2d 1041 (5th Cir.1984); Howell v. Marmpegaso Compania Naviera,

S.A., 566 F.2d 992 (5th Cir.1978) (per curiam).

rights of the plaintiffs, and the errors were therefore harmless.12

A. Willie and Rose Richardson's Affidavit

The district court struck two portions of the plaintiffs'

affidavit. First, the statement that "Tommy Harrell used

unreasonable methods to search their home" was struck as making a

legal conclusion.13 "Mere conclusory allegations are not competent

summary judgment evidence,"14 and the district court was within its

discretion to strike them from the Richardsons' affidavit.

Second, the statement that "[b]ased on information and

belief, in June 1991, a neighbor's home on their road was searched

by Tommy Harrell where marijuana was found" was struck as not based

on personal knowledge and therefore failing the requirements of

Fed.R.Civ.P. 56(e).15 While the non-movant's affidavits should not

be held to as strict a standard as those of the movant for summary

judgment,16 we find no abuse of the district court's discretion in

12

Fed.R.Civ.P. 61. "[T]he erroneous admission or exclusion

of an affidavit that does not meet the Rule 56(e) standard does

not require reversal of a summary judgment if the error is

harmless". 10A Charles A. Wright, Arthur R. Miller & Mary K.

Kane, Federal Practice and Procedure § 2738, at 468-69 (2d ed.

1983).

13

811 F.Supp. at 1196.

14

Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th Cir.), reh'g

denied, 961 F.2d 215 (5th Cir.), cert. denied, 506 U.S. ----, 113

S.Ct. 82, 121 L.Ed.2d 46 (1992); see also Hanchey v. Energas

Co., 925 F.2d 96, 97 (5th Cir.1990).

15

811 F.Supp. at 1196.

16

"[T]he papers of a party opposing summary judgment are

usually held to a less exacting standard than those of the moving

party.... In previous cases we have accepted evidence from the

party opposing summary judgment despite its failure to meet the

technical requirements of Rule 56(e)". Lodge Hall Music, Inc. v.

Waco Wrangler Club, Inc., 831 F.2d 77, 80 (5th Cir.1987)

(citations omitted). Accord 10A Wright, Miller & Kane § 2738, at

striking the above quoted statement from the plaintiffs' affidavit.

B. Willie James Jones's Affidavit

The district court struck two parts of Willie James Jones's

affidavit. First, Jones's assertion that Harrell searched his

house without a warrant in the "spring/summer ... of 1991" was

struck as insufficiently specific.17 Fed.R.Civ.P. 56(e) requires

that affidavits opposing a summary judgment be specific; the

district court did not abuse its discretion in striking the quoted

portion of Jones's affidavit.

Second, the following assertion, which appeared verbatim in

four other affidavits,18 was struck as not based on Jones's personal

knowledge: "Appearers, due to knowledge in the community, believes

that Tommy Harrell uses illegal searches in a misguided effort to

discourage illegal drug activity".19 The district court's ruling

would be well taken if Jones was asserting that Harrell actually

used illegal searches, but Jones's affidavit merely states that

Jones believed Harrell's tactics were unlawful. Still, any error

in striking that portion of the affidavit was harmless, because

Jones's statement of his belief that Harrell used illegal tactics

had no probative force to prove that Harrell actually did so.

C. Rick Turner's Affidavit

The district court struck the affidavit of Rick Turner, the

484-86.

17

811 F.Supp. at 1196-97.

18

The same language appeared in the affidavits of Paul

Gatson, John Johnson, Odell Beckham, Sr., and Rosa Washington.

19

Id. at 1197.

plaintiffs' expert witness, in its entirety because it was not

based on specific facts.20 Turner described his purported

investigation of alleged prior constitutional violations by

Harrell, without indicating whose rights were violated or how. No

manifest error is evident.21

D. Paul Gatson's Affidavit

The district court struck two parts of Gatson's affidavit.

First, the district court struck the same opinion language that

appeared in Willie James Jones's affidavit, discussed in section

III.B of this opinion. Second, Gatson stated that his residence

was searched without a warrant and that he was not arrested or

charged with any crime as a result of the search. The district

court struck that statement because public records showed that the

search of Gatson's home had in fact been conducted under a warrant

and he had in fact been convicted of possession of a controlled

substance as a result of the search.22

Credibility determinations have no place in summary judgment

proceedings.23 The district court chose to believe the defendants'

evidence over the plaintiffs' and that was error. The non-movants'

summary judgment evidence must be taken as true.24 We conclude,

20

811 F.Supp. at 1197.

21

Washington v. Armstrong World Indus., Inc., 839 F.2d 1121,

1123 (5th Cir.1988).

22

811 F.Supp. at 1197.

23

See Lindsey v. Prive Corp., 987 F.2d 324, 327 n. 14 (5th

Cir.1993); Leonard v. Dixie Well Serv. & Supply, Inc., 828 F.2d

291, 294 (5th Cir.1987).

24

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106

S.Ct. 2505, 2514, 91 L.Ed.2d 202 (1986).

however, that the district court's error in striking this part of

Gatson's affidavit was harmless.

E. John Johnson's Affidavit

The two portions of Johnson's affidavit the district court

struck were substantially identical with the portions stricken from

Jones's affidavit, discussed in section III.B.

F. Bessie Wright's Affidavit25

The district court struck Bessie Wright's affidavit because

it had been notarized by plaintiffs' counsel who, the district

court said, was ineligible to serve as a notary because of a

financial interest in the outcome of the lawsuit.26 The only

authority the district court cited for that unusual proposition,

however, was a Texas state case that plainly does not enunciate the

rule the district court applied.27

The district court erred in striking Wright's affidavit. The

question whether an affidavit is competent summary judgment

evidence begins and ends with the requirements of Fed.R.Civ.P.

25

The district court's opinion, 811 F.Supp. at 1198, refers

to this affiant as "Betsy Wright". We have corrected the

spelling of Ms. Wright's name to that provided by the appellants.

26

811 F.Supp. at 1198.

27

Chambers v. Terrell, 639 S.W.2d 451 (Tex.1982) (per

curiam).

We are not to be understood as approving the holding of

the Court of Appeals that the affidavit ... was void

because the attorney who acted as the notary to take

the affidavits had a "strong financial and beneficial

interest." Among other things, no financial interest

appears in the record. The point is reserved.

Id. at 452 (emphasis added).

56(e). Regardless of what the rule is in Texas state courts, the

district court may not hold the plaintiffs to it. An affidavit is

not incompetent summary judgment evidence merely because

plaintiffs' counsel notarized it. Weighing all the circumstances,

we hold that the district court's error in striking Wright's

affidavit was harmless.

G. Odell Beckham, Sr.'s Affidavits

The district court struck two portions of Beckham's first

affidavit which were substantially identical to the portions

stricken from Jones's,28 previously discussed.

The district court struck Beckham's second affidavit in its

entirety because it was notarized by plaintiffs' counsel. As in

the case of Wright's affidavit, the district court's error in

striking Beckham's affidavit was harmless.

H. Debra Geary and Alan Geary's Affidavits

The district court struck both affidavits in their entirety

because they did not state facts with the specificity required by

Fed.R.Civ.P. 56(e). We find no abuse of the district court's

discretion.

I. Rosa Washington's Affidavit

The district court struck two portions of Washington's

affidavit which were substantially identical to the portions

stricken from Jones's.29 Our analysis of the admissibility of

Jones's affidavit applies.

Having concluded that the district court committed only

28

811 F.Supp. at 1198.

29

811 F.Supp. at 1198.

harmless error in its evidentiary rulings, we proceed at last to

the merits of the plaintiffs' claim.

IV.

A. The "Heightened Pleading" Issue

The district court based its decision, in part, on the

Richardsons' failure to meet the "heightened pleading" standard

this Court established in Leatherman v. Tarrant County Narcotics

Intelligence & Coordination Unit30 and Elliott v. Perez.31 The

Supreme Court reversed our Leatherman decision and held that no

heightened pleading standard may be required of plaintiffs' § 1983

claims against municipalities.32 The Supreme Court's Leatherman

holding disposes of the heightened pleading question as against

defendants Berry and Harrison County. Defendant Harrell, however,

presents us with the question Leatherman expressly reserved, namely

whether a heightened pleading standard is still permissible when

the plaintiff sues not a municipality but an individual government

official.33

We decide this case without reaching the "heightened pleading"

question as to individual government officials. Rather, we

conclude only that the Richardsons have not met their summary

30

954 F.2d 1054 (5th Cir.1992), rev'd, 507 U.S. ----, 113

S.Ct. 1160, 122 L.Ed.2d 517 (1993).

31

751 F.2d 1472, 1479 (5th Cir.1985).

32

Leatherman, 507 U.S. at ----, 113 S.Ct. at 1163, 122

L.Ed.2d at 524.

33

"We thus have no occasion to consider whether our

qualified immunity jurisprudence would require a heightened

pleading in cases involving individual government officials".

Leatherman, 507 U.S. at ----, 113 S.Ct. at 1162, 122 L.Ed.2d at

523.

judgment burden of raising a genuine dispute as to any question of

material fact. A case will inevitably arise that will force us to

assess the impact of the Supreme Court's Leatherman reasoning on

our Elliott v. Perez precedent, but this is not that case.

B. Defendant Harrell and the "Qualified Immunity" Question

The Richardsons have sued Harrell in his individual capacity.

"Qualified immunity cloaks a police officer from personal liability

for discretionary acts which do not violate well-established law".34

Harrell has qualified immunity if his actions "could reasonably

have been thought consistent with the rights [he is] alleged to

have violated".35

We conclude that the district court was correct in holding

that the Richardsons have not overcome Harrell's qualified

immunity. The Richardsons have met the threshold requirement of

alleging a violation of a constitutional right.36 They have not

succeeded, however, in showing that Harrell could not have

reasonably believed that his search was lawful.37 To make that

showing, the plaintiffs must show that the illegality of the

challenged conduct was clearly established in factual circumstances

34

Streetman v. Jordan, 918 F.2d 555, 556 (5th Cir.1990)

(citing Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73

L.Ed.2d 396 (1982)), reh'g denied, 923 F.2d 851 (5th Cir.1991).

35

Anderson v. Creighton, 483 U.S. 635, 638, 107 S.Ct. 3034,

3038, 97 L.Ed.2d 523 (1987).

36

See Siegert v. Gilley, 500 U.S. 226, ----, 111 S.Ct. 1789,

1793, 114 L.Ed.2d 277, 284 (1991), reh'g denied, 501 U.S. ----,

111 S.Ct. 2920, 115 L.Ed.2d 1084 (1991); Quives v. Campbell, 934

F.2d 668, 670-71 (5th Cir.1991).

37

Anderson, 483 U.S. at 641, 107 S.Ct. at 3039-40.

closely analogous to those of this case.38 The question before this

Court, then, is whether the illegality of a search based on a

warrant containing a description that fitted two adjacent houses

was so clearly established that Harrell could not reasonably have

believed his search was lawful.

The legality of a warrant is determined in light of the

information available to police officers at the time they obtained

it.39 If at that time Harrell knew or should have known that there

were two houses at Route 3, Box 628 fitting the description given

in the warrant, he would have been obligated to specify in the

warrant which house was to be searched,40 and the search in this

case would have been unlawful. At the time Harrell obtained the

warrant, it is not clear that he knew the description of the

property in the warrant fit two houses at Route 3, Box 628. Nor

will we conclude that he should have known, given that the letter

designations "A" through "D" which differentiated the houses were

38

See White v. Taylor, 959 F.2d 539, 545-56 & n. 5 (5th

Cir.1992); Karen M. Blum, Qualified Immunity: A User's Manual,

26 Ind.L.Rev. 187, 199-202 (1993).

39

Maryland v. Garrison, 480 U.S. 79, 85-86, 107 S.Ct. 1013,

1017-18, 94 L.Ed.2d 72 (1987). This case upheld the validity of

a warrant issued to search the entire third floor of an apartment

building, in the mistaken belief that only one apartment was

located on that floor. While executing the warrant, the officers

discovered that the third floor included more than one apartment.

Because the information available to them at the time the warrant

was issued suggested that only one apartment was on the third

floor, however, the Court upheld the search of the respondent's

apartment even though the warrant did not specify that his was

the apartment to be searched.

40

See id. at 85, 107 S.Ct. at 1017; United States v.

Mueller, 902 F.2d 336, 342 & n. 2 (5th Cir.1990).

not visible from the street.41 In short, Harrell's search was

lawful, so he could reasonably have believed his search was lawful,

and for that reason he is entitled to qualified immunity. We

uphold the district court's summary judgment for Harrell.

C. The Remaining Defendants and a "Municipal Policy or Custom"

A municipality is liable under § 1983 "only where the

municipality itself causes the constitutional violation at issue".42

The violation must be caused by a "municipal policy or custom"

consisting of a " "deliberate' or "conscious' choice" "by city

policymakers".43 This Court has stated that a municipal policy may

be established by a persistent pattern of conduct as well as by a

formal legal declaration.44

41

This conclusion accords with the view of a respected

commentator that warrants which "describe[ ] two or more

different places which are not owned or occupied by the same

individual" should not be "viewed as inherently in violation of

the Fourth Amendment". 2 Wayne R. LaFave, Search and Seizure §

4.5(c), at 223 (2d ed. 1987) (footnotes omitted).

42

City of Canton v. Harris, 489 U.S. 378, 385, 109 S.Ct.

1197, 1203, 103 L.Ed.2d 412 (1989).

Because he is sued in his official capacity, the

"municipal custom or policy" requirement protects

defendant/appellee Rick Berry as well as Harrison County.

See Johnson v. Moore, 958 F.2d 92, 94 (5th Cir.1992).

43

Harris, 498 U.S. at 385, 389, 109 S.Ct. at 1202-03, 1205

(quoting Pembaur v. City of Cincinnati, 475 U.S. 469, 483-84, 106

S.Ct. 1292, 1300, 89 L.Ed.2d 452 (1986) (plurality opinion);

City of Oklahoma City v. Tuttle, 471 U.S. 808, 824, 105 S.Ct.

2427, 2436-37, 85 L.Ed.2d 791 (plurality opinion), reh'g denied,

473 U.S. 925, 106 S.Ct. 16, 87 L.Ed.2d 695 (1985)).

44

In Bennett v. City of Slidell, 735 F.2d 861, 862 (5th

Cir.1984) (en banc), cert. denied, 472 U.S. 1016, 105 S.Ct. 3476,

87 L.Ed.2d 612 (1985), we defined "official policy" as:

1. A policy statement, ordinance, regulation, or

decision that is officially adopted and promulgated by

the municipality's lawmaking officers or by an official

In this case the Richardsons contend that Berry and Harrison

County had an unstated custom of failing to prevent Harrell from

committing unconstitutional acts and failing to discipline him

after he did so. The essence of their argument is that Harrell was

a "loose cannon" who was permitted to engage freely in illegal

searches and seizures without supervision.

Although we must view the evidence in the light most favorable

to the plaintiffs as the non-movants for summary judgment, we are

unable to discern in the record any evidence of a longstanding

pattern of repeated constitutional violations by Harrell, except

for the plaintiffs' conclusory assertions that such a pattern

existed. We do not find evidence in the record of even one

unconstitutional action by Harrell. Absent proof of a pattern of

constitutional violations, there is no basis for imposing liability

on Berry and Harrison County for failing to prevent them. We agree

with the district court that the Richardsons have produced

insufficient evidence of any municipal custom or policy to survive

summary judgment for the defendants.

We AFFIRM the district court's judgment.

to whom the lawmakers have delegated policy-making

authority; or

2. A persistent, widespread practice of city officials

or employees, which, although not authorized by

officially adopted and promulgated policy, is so common

and well settled as to constitute a custom that fairly

represents municipal policy. Actual or constructive

knowledge of such custom must be attributable to the

governing body of the municipality or to an official to

whom that body had delegated policy-making authority.