Brantner v. Freestone Cty Sheriffs Off

Case: 20-50528 Document: 00516350998 Page: 1 Date Filed: 06/09/2022

United States Court of Appeals

for the Fifth Circuit United States Court of Appeals

Fifth Circuit

FILED

June 9, 2022

No. 20-50528

Lyle W. Cayce

Clerk

Carlton E. Brantner,

Plaintiff—Appellant,

versus

Freestone County Sheriffs Office; Sheriff Don

Anderson; Lieutenant Jimmy McAdams, Jr.; Corporal

Don Dunn; Correctional Officer Ben Barlow;

Municipality of Freestone County; Sergeant Wade

Harrison,

Defendants—Appellees.

Appeal from the United States District Court

for the Western District of Texas

No. 616-CV-351

Before Higginbotham, Higginson, and Oldham, Circuit Judges.

Per Curiam:*

We review seven challenges by Carlton Brantner, a pro se plaintiff,

who sustained injury while a pretrial detainee in the Freestone County jail.

*

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opinion should not be published and is not precedent except under the limited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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No. 20-50528

He appeals the district court’s grant of the Defendants’ motions and of

summary judgment. We affirm.

I.

Brantner alleges that while housed as a pretrial detainee, he was

assaulted three times in two weeks by the same inmate, Levi Jones-Carroll.

The first assault allegedly arose because Brantner was standing too close to

Jones-Carroll while watching television. A week later, Jones-Carroll

assaulted him a second time because he thought Brantner had hidden an

extension cord from him. Brantner says that Jones-Carroll entered his cell,

grabbed him by the ankles and “jerked me off the bunk and I hit the concrete

floor on my tailbone and back causing me injury.” He sustained only minor

injuries during the first two assaults.

On December 20, 2014 Jones-Carroll assaulted him a third time and

he injured his left eye socket, jaw, and gave him chest contusions, requiring

emergency medical treatment in a local hospital. In his discharge papers, the

E.R. doctor wrote that Brantner needed to see a specialist surgeon within one

week. Brantner did not see the surgeon until January 7, 2015, although the

surgeon was available the week of December 21, 2014. On seeing him, the

surgeon told Brantner that this delay allowed his fractures to heal improperly,

requiring an additional, invasive surgery that would be painful and leave

scarring. Given the potential pain and scarring from this procedure, Brantner

decided not to undergo the surgery.

Brantner sued the Freestone County Sheriff’s Office, Sheriff Don

Anderson, Jail Administrator Lieutenant Jimmy McAdams Jr., Jail Shift

Supervisor Corporal Don Dunn, and Correctional Officer Ben Barlow

(collectively the “Defendants”) under 42 U.S.C. § 1983. He alleges that

Defendants were deliberately indifferent to his safety because they failed to

separate him from Jones-Carroll after the first two assaults and because they

delayed getting him medical care after the third assault. Brantner sought an

injunction, compensatory damages, and punitive damages. Brantner later

2

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No. 20-50528

amended his complaint, adding Freestone County and Sergeant Wade

Harrison as defendants (included in the “Defendants”).

The district court granted Defendants’ motion to limit discovery to

issues of qualified immunity. Following this focused discovery, the district

court granted summary judgment and dismissed all of his claims. Brantner

timely appealed.

II.

After the Defendants filed their reply brief, Brantner moved to amend

his initial brief to address his failure to cite to the record on appeal. That

motion has been carried with the case. 1 As the amendments were only to

include adequate record cites and Defendants fully briefed each issue on

appeal, the motion is GRANTED. 2

Brantner also attached several documents to his brief that were not

presented to the district court and were not included in the Record on

Appeal. Brantner never moved to supplement the record pursuant to Federal

Rule of Appellate Procedure 10(e) nor does he allege that these documents

were omitted from the record by error or accident. We “will not enlarge the

record on appeal with evidence not before the district court.” 3 We disregard

these attachments and do not consider them in our review.

III.

We review a grant of summary judgment de novo, viewing all evidence

and drawing reasonable inferences in favor of the nonmoving party. 4

Summary judgment is proper “if the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a

1

No. 20-50528, Order Carrying Motion with the Case, Document: 005161354.

2

See United States v. Riascos, 76 F.3d 93, 94 (5th Cir. 1996) (per curiam).

3

Trinity Indus., Inc. v. Martin, 963 F.2d 795, 799 (5th Cir. 1992).

4

Ratliff v. Aransas Cnty., 948 F.3d 281, 287 (5th Cir. 2020).

3

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matter of law.” 5 “A fact is material if it might affect the outcome of the suit

and a factual dispute is genuine if the evidence is such that a reasonable jury

could return a verdict for the nonmoving party.” 6 “This court may affirm the

district court’s grant of summary judgment on any ground supported by the

record and presented to the district court.” 7 “When a defendant official

moves for summary judgment on the basis of qualified immunity, ‘the burden

then shifts to the plaintiff, who must rebut the defense by establishing a

genuine fact issue as to whether the official’s allegedly wrongful conduct

violated clearly established law.’” 8

IV.

Brantner brings seven issues on appeal. First, whether the district

court properly limited discovery to qualified immunity; second, whether

Freestone County violated Brantner’s constitutional rights in failing to

provide a law library; third, whether Defendants violated Brantner’s Eighth

Amendment rights in failing to segregate convicted prisoners and pretrial

detainees; fourth, whether the district court erred in granting Dunn and

Barlow qualified immunity; fifth, whether Anderson, Harrison, and

McAdams were liable for their subordinates’ alleged constitutional violations

under § 1983; sixth, whether Defendants were deliberately indifferent to

Brantner’s medical needs; and seventh, whether the district court abused its

discretion in denying Brantner’s three motions to appoint counsel. Issues

four, five, and six turn on whether certain defendants are entitled to qualified

immunity. We address each issue in turn.

5

Fed. R. Civ. P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48

(1986).

6

Harville v. City of Houston, 945 F.3d 870, 874 (5th Cir. 2019) (internal quotation

marks omitted).

7

Salinas v. R.A. Rogers, Inc., 952 F.3d 680, 682 (5th Cir. 2020) (citation omitted).

8

Aguirre v. City of San Antonio, 995 F.3d 395, 406 (5th Cir. 2021) (quoting Darden

v. City of Fort Worth, 880 F.3d 722, 727 (5th Cir. 2018)).

4

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A.

Brantner argues that the district court should not have limited

discovery because the Defendants were not entitled to qualified immunity.

The defense of qualified immunity also invokes protection from pretrial

discovery. 9 To ensure defendants are not burdened by pretrial discovery after

invoking this defense, a district court may “ban discovery at . . . [the]

pleading stage and may limit any necessary discovery to the defense of

qualified immunity.” 10 Brantner has not shown that he could overcome the

defense of qualified immunity, the information missing from the discovery,

or how it harmed the presentation of his case. 11 The district court did not

abuse its discretion in limiting pretrial discovery to the issue of qualified

immunity. 12

B.

Brantner argues that the district court erred in dismissing his claim

that Defendants violated his right to access courts because the jail did not

provide inmates with a law library, federal materials, or access to grievance

forms. The district court found that any failure to provide grievance forms

was not a constitutional violation but did not address the lack of a law library

or other federal materials. 13

Prisoners have a constitutionally-protected right of access to the

courts. 14 But there is no “abstract, freestanding right to a law library or legal

assistance” in a jail, and an inmate cannot demonstrate the requisite actual

9

Backe v. LeBlanc, 691 F.3d 645, 648–49 (5th Cir. 2012).

10

Schultea v. Wood, 47 F.3d 1427, 1434 (5th Cir. 1995) (en banc).

11

Decker v. Dunbar, 358 F. App’x 509, 511 (5th Cir. 2009) (per curiam).

12

Haase v. Countrywide Home Loans, Inc., 748 F.3d 624, 631 (5th Cir. 2014).

13

Although Brantner raised the issue of the law library in his amended complaint,

Brantner did not raise it again in his subsequent filings to the district court.

14

DeMarco v. Davis, 914 F.3d 383, 387 (5th Cir. 2019).

5

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injury for an access-to-courts claim “simply by establishing that his prison’s

law library or legal assistance program is subpar in some theoretical sense.” 15

“To prevail on such a claim, a prisoner must demonstrate that he suffered

‘actual injury’ in that the prison ‘hindered his efforts’ to pursue a

nonfrivolous action.” 16

Brantner argues that the lack of grievance forms and a law library

violated his constitutional rights, but he does not “go one step further” and

show how this lack hindered his ability to pursue nonfrivolous legal claims. 17

Unlike in Brantner’s earlier case, exhaustion is not at issue here, so the failure

to timely provide grievance forms did not hinder his ability to pursue his

claims. 18 And considering Brantner’s progress and success in litigating his

suit to date, he fails to show that lack of access to a law library hindered his

efforts.

C.

Brantner argues the Defendants violated his Eighth Amendment right

to be free from cruel and unusual punishment because they housed him with

convicted inmates when he was a pretrial detainee. The district court did not

address this claim and Brantner did not brief it before the district court.

Liberally construing Brantner’s complaint and supplemental briefing, his

allegations that Defendants failed to provide a safe and secure environment

rested on the alleged failures of Defendants to act after either the first or

second assault. It was not until this appeal that Brantner challenged the

15

Lewis v. Casey, 518 U.S. 343, 351 (1996).

16

DeMarco, 914 F.3d at 387 (quoting Lewis, 518 U.S. at 349, 351).

17

See Lewis, 518 U.S. at 351.

18

Brantner v. Freestone Cnty. Sheriffs Off., 776 F. App’x 829, 834 (5th Cir. 2019)

(per curiam) (Brantner appealed the district court’s grant of summary judgment for failure

to exhaust his administrative remedies; this Court found that a genuine issue of material

fact remained as to whether administrative remedies were made available to him so

summary judgment was precluded); DeMarco, 914 F.3d at 387.

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Defendants’ decision to house pretrial detainees and convicted prisoners

together. As this claim is brought for the first time on appeal, it is forfeited. 19

D.

Brantner challenges the district court’s finding that defendants Dunn

and Barlow were entitled to qualified immunity. We use a two-step inquiry to

determine if an officer is entitled to qualified immunity. First, “we ask

whether the officer’s alleged conduct has violated a federal right.” 20 Second,

“we ask whether the right in question was clearly established at the time of

the alleged violation, such that the officer was on notice of the unlawfulness

of his or her conduct.” 21 We have “discretion in deciding which of the two

prongs of the qualified immunity analysis should be addressed first.”22

“When an official raises qualified immunity on summary judgment . . . the

plaintiff bears the burden of showing that the defense does not apply.” 23

Brantner has not carried that burden here.

Brantner contends that Dunn and Barlow failed to protect him

following the first and second assaults. After the first assault, Dunn told him

to “lay low,” but took no other action. After the second assault, Barlow

confiscated the extension cord which had led to the assault, locked his cell

door for his protection, but took no further action. The evidence provided by

Brantner discussed the extension cord, but not violence by Jones-Carroll or

any other concerning conduct that would have put the Defendants on notice

that they needed to take further action to prevent future assaults. There is no

19

Rollins v. Home Depot USA, 8 F.4th 393, 397–98(5th Cir. 2021); Yohey v. Collins,

985 F.2d 222, 224-25 (5th Cir. 1993).

20

Cole v. Carson, 935 F.3d 444, 451 (5th Cir. 2019) (en banc).

21

Id.

22

Pearson v. Callahan, 555 U.S. 223, 236 (2009).

23

Cunningham v. Castloo, 983 F.3d 185, 191 (5th Cir. 2020).

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evidence in the record that Barlow or Dunn knew of, but ignored, a serious

threat to Brantner. 24

Brantner argues that Dunn and Barlow violated his constitutional

rights by failing “to follow a multitude of ministerial duties as they apply to

the constitutional violations against him.” At most, Brantner has alleged that

Barlow and Dunn violated the jail’s policy by failing to obtain grievance forms

more quickly or move him to a different cell following the assaults. However,

“a prison official’s failure to follow the prison’s own policies, procedures or

regulations does not constitute a violation of due process, if constitutional

minima are nevertheless met.” 25 Here, the defendants “did not disregard ‘an

excessive risk to inmate health or safety.’” 26 As there is no evidence here that

Barlow and Dunn actually knew of and ignored a serious threat to Brantner,

they did not violate a constitutional right and are entitled to qualified

immunity. 27

E.

Brantner argues that defendants Anderson, Harrison, and McAdams

are liable for their subordinates’ alleged constitutional violations under

§ 1983 and should not have been granted qualified immunity. The district

court concluded that Brantner presented no evidence that they were

personally involved in Brantner’s alleged constitutional deprivation, had any

policy making authority, or otherwise disregarded any known risk to

Brantner.

24

Although Brantner provided further evidence of Jones-Carroll’s violent history

on appeal, this evidence was never before the district court, so as addressed above, we

cannot consider it here. McIntosh v. Partridge, 540 F.3d 315, 327 (5th Cir. 2008).

25

Myers v. Klevenhagen, 97 F.3d 91, 94 (5th Cir. 1996) (per curiam); Williams v.

Banks, 956 F.3d 808, 812 (5th Cir. 2020).

26

Williams, 956 F.3d at 812 (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)).

27

Olabisiomotosho v. City of Houston, 185 F.3d 521, 528 (5th Cir. 1999).

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Supervisory officials cannot be held vicariously liable in § 1983 cases

solely on the basis of their employer-employee relationship. 28 A supervisor

may be held liable if the supervisor was personally involved in the

constitutional deprivation or if there was otherwise “a sufficient causal

connection between the supervisor’s wrongful conduct and the

constitutional violation.” 29 Brantner has not alleged any personal

involvement by Anderson, Harrison, or McAdams. He has not presented any

evidence that these defendants knew of and subsequently disregarded a

substantial risk to his safety; there is no evidence that Anderson, Harrison,

and McAdams were aware of any potential violence from Jones-Carroll or of

the previous assaults. Nor is there any evidence that these defendants

implemented a policy that caused a violation of his constitutional rights. 30

Assuming that Brantner is arguing that the defendants failed to train their

subordinate officers, there is no evidence showing a link between the failure

to train and a constitutional violation. 31 Thus, the district court did not err in

granting qualified immunity to Anderson, Harrison, and McAdams.

F.

Brantner alleges that Defendants were deliberately indifferent to his

medical needs when they failed to abide the E.R. doctor’s orders to see a

specialist surgeon within one week. We ask if a defendant violated a clearly

established constitutional right and then whether the defendant’s conduct

was objectively reasonable in light of the clearly established law. 32 A prison

official violates the Eighth Amendment “when his conduct demonstrates

28

Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978); Lozano v. Smith, 718 F.2d

756, 768 (5th Cir. 1983).

29

Thompkins v. Belt, 828 F.2d 298, 304 (5th Cir. 1987).

30

Thompkins, 828 F.2d at 304.

31

Smith v. Brenoettsy, 158 F.3d 908, 911–12 (5th Cir. 1998).

32

Easter v. Powell, 467 F.3d 459, 462 (5th Cir. 2006).

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deliberate indifference to a prisoner’s serious medical needs, constituting an

unnecessary and wanton infliction of pain.” 33 “To prevail on a claim for

deliberate indifference, [he] must show that a [state] actor denied him

treatment, ignored his complaints, knowingly treated him incorrectly, or

otherwise evidenced a wanton disregard for his serious medical needs.” 34

Sergeant Harrison knew that Brantner needed follow-up care within a

week—care he did not receive until two weeks later, despite the doctor’s

availability. 35 Although “[t]he pain suffered during a delay in treatment can

constitute a substantial harm and form the basis for an award of damages,” 36

Brantner has made no showing that Harrison was deliberately indifferent to

his medical needs, nor has he alleged any substantial harm resulting from the

delay in treatment. 37 Neither Sergeant Harrison, nor any other defendant,

were deliberately indifferent to Brantner’s medical needs.

G.

Finally, Brantner argues that the district court abused its discretion

when it denied his three motions to appoint counsel. “There is no automatic

right to the appointment of counsel; and in a civil case a federal court has

33

Id. at 463.

34

Carlucci v. Chapa, 884 F.3d 534, 538 (5th Cir. 2018).

35

Although Brantner refers to Defendants collectively, reviewing his complaint

and briefing below, it appears that Harrison is the only named defendant who was aware of

the E.R. doctor’s instructions and thus the only defendant who could have been

deliberately indifferent to Brantner’s medical needs. Cf. Joseph v. Bartlett, 981 F.3d 319,

325 & n.7 (5th Cir. 2020) (explaining collective analysis is inappropriate for qualified-

immunity claims, which should be “addressed separately for each individual defendant”).

36

Alderson v. Concordia Par. Corr. Facility, 848 F.3d 415, 422 (5th Cir. 2017) (per

curiam).

37

Easter v. Powell, 467 F.3d 459, 463 (5th Cir. 2006) (“The mere delay of medical

care can also constitute an Eighth Amendment violation but only ‘if there has been

deliberate indifference [that] results in substantial harm.’”).

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considerable discretion in determining whether to appoint counsel.” 38 We

review the district court’s decision to deny a motion to appoint counsel for

abuse of discretion. 39 A district court considers four factors in determining

whether to appoint counsel:

(1) the type and complexity of the case; (2) whether the

indigent is capable of adequately presenting his case;

(3) whether the indigent is in a position to investigate

adequately the case; and (4) whether the evidence will consist

in large part of conflicting testimony so as to require skill in the

presentation of evidence and in cross examination. 40

The district court denied each motion, finding that Brantner did not

demonstrate that the complexity of his issues required appointing counsel,

that he was incapable of bringing his claims, or that counsel was necessary to

present meritorious claims to the court. The district court did not abuse its

discretion in denying his motions for appointment of counsel.

****

We AFFIRM.

38

Salmon v. Corpus Christi Indep. Sch. Dist., 911 F.2d 1165, 1166 (5th Cir. 1990) (per

curiam).

39

Id.

40

Ulmer v. Chancellor, 691 F.2d 209, 213 (5th Cir. 1982) (citations omitted);

Delaughter v. Woodall, 909 F.3d 130, 140–41 (5th Cir. 2018).

11