Brown v. Kelly

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

September 26, 2008

No. 07-60329

Summary Calendar Charles R. Fulbruge III

Clerk

HERMAN BROWN

Plaintiff-Appellant

v.

LAWRENCE KELLY, Superintendent, in his official and personal capacities;

CHRISTOPHER EPPS, Commissioner, in his official and personal capacities;

EMMITT SPARKMAN, Deputy Commissioner, in his official and personal

capacities; EARNEST LEE, Warden, in his official and personal capacities;

TONYA STOKES; TOMMY MITCHELL; HENRY MAXWELL; JOHNNY

ROGERS, Deputy Warden, in his official and personal capacities, DYLESTER

FOSTER, Associate Warden, in her official and personal capacities; STANLEY

FLAGG, Intern Associate Warden, in his official and personal capacities;

BEVERLY WILLIAMS, Correctional Commander, in her official and personal

capacities

Defendants-Appellees

Appeal from the United States District Court

for the Northern District of Mississippi

USDC No. 4:05-CV-188

Before JONES, Chief Judge, and DENNIS and HAYNES, Circuit Judges.

PER CURIAM:*

Herman Brown, Mississippi prisoner # R3791 filed a civil rights complaint

against 11 defendants alleging that they were deliberately indifferent to his

*

Pursuant to 5TH CIR. R. 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should not be published and is not precedent except under the limited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 CIR. R. 47.5.4.

No. 07-60329

safety because he was stabbed by other inmates. The defendants were

Superintendent Lawrence Kelly, Commissioner Christopher Epps, Deputy

Commissioner Emmitt Sparkman, Warden Earnest Lee, Officer Stokes, Sergeant

Mitchell, Captain Maxwell, Deputy Warden Johnny Rogers, Associate Warden

Dylester Foster, Associated Warden Stanley Flagg, and Commander Beverly

Williams.

Following a Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985), hearing, the

district court dismissed the claims against Kelly, Epps, Sparkman, Lee, Foster,

and Flagg for failure to state a claim on which relief could be granted. Brown

argues that this was error. A dismissal for failure to state a claim is reviewed

under the same de novo standard as dismissals under FED. R. CIV. P. 12(b)(6).

Bazrowx v. Scott, 136 F.3d 1053, 1054 (5th Cir. 1998); see also In re Katrina

Canal Breaches Litigation, 495 F.3d 191, 205 (5th Cir. 2007), cert. denied,

128 S. Ct. 1230, 1231 (2008). Supervisory officials are not liable for the actions

of subordinates on a theory of vicarious liability or respondeat superior. See

Thompkins v. Belt, 828 F.2d 298, 303-04 (5th Cir. 1987). “Supervisory liability

exists even without overt personal participation in the offensive act if

supervisory officials implement a policy so deficient that the policy itself is a

repudiation of constitutional rights and is the moving force of the constitutional

violation.” Id. (internal quotations and citation omitted). Although Brown

makes such a policy argument, he has not stated the nature of the policy. His

claim was simply that the defendants should be held responsible for the actions

of their subordinates, who failed in their duties. This is insufficient to support

a claim of a constitutional violation. Brown has not shown that the district court

erred in dismissing his suit against these defendants.

The claims against Stokes, Mitchell, Maxwell, and Rogers were not

dismissed and went to trial before a jury. At the close of Brown’s case, the

defendants moved for judgment as a matter of law pursuant to FED. R. CIV.

P. 50. The district court granted the motion as to Rogers. Following the

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No. 07-60329

presentation of the defense’s case the other defendants renewed their motion for

judgment as a matter of law. Brown made no such motion pursuant to FED.

R. CIV. P. 50. The jury returned a verdict in favor of Stokes, Mitchell, and

Maxwell. Within 10 days of the judgment, Brown filed a motion for a new trial

under FED. R. CIV. P. 59 and FED. R. CIV. P. 50(b). The district court treated the

motion as having been brought under Rule 59. The district court found that

although Brown had shown that he could not have been attacked and stabbed

without “negligence on the part of some prison staff[,]” he could not show that

the verdict rejecting the claim of deliberate indifference was against the

overwhelming weight of the evidence.

Brown argues that the district court erred in denying his motion for a new

trial. “Ordinarily, a district court’s decision not to grant a new trial under [FED.

R. CIV. P.] 59(a) is not appealable.” Toops v. Gulf Coast Marine Inc., 72 F.3d 483,

486 (5th Cir. 1996) (quotation marks omitted). Instead, it is regarded as an

attack on the final judgment. Id. Brown failed to move for judgment as a matter

of law at the close of the evidence pursuant to FED. R. CIV. P. 50.

If a party fails to move for judgment as a matter of law under [Rule]

50(a) on an issue at the conclusion of all of the evidence, that party

waives both its right to file a renewed post-verdict Rule 50(b) motion

and also its right to challenge the sufficiency of the evidence on that

issue on appeal. As such, it is the unwavering rule in this Circuit

that issues raised for the first time on appeal are reviewed only for

plain error. On plain error review, the question for this court is not

whether there was substantial evidence to support the jury verdict,

but whether there was any evidence to support the jury verdict.

Flowers v. Southern Reg’l Physician Servs. Inc., 247 F.3d 229, 238 (5th Cir. 2001)

(quotation marks, citations, and footnote omitted).

To prevail on his claim that prison officials violated his Eighth

Amendment rights, Brown must have shown that officials acted with deliberate

indifference to his safety. Cantu v. Jones, 293 F.3d 839, 844 (5th Cir. 2002). “To

find that an official is deliberately indifferent, it must be proven that the official

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No. 07-60329

knows of and disregards an excessive risk to inmate health or safety; the official

must both be aware of facts from which the inference could be drawn that a

substantial risk of serious harm exists, and he must also draw the inference.”

Id. (internal quotation marks and citation omitted). If an inmate shows only

that officials acted negligently, his Eighth Amendment claim fails. Neals v.

Norwood, 59 F.3d 530, 533 (5th Cir. 1995) (failure-to-protect case).

Officer Mitchell testified that he personally strip searched every inmate

present in the exercise yard at the time of the attack on Brown. Officer Stokes

testified that when she unlocked inmate Frierson’s individual pen, he removed

his handcuffs and pulled a knife causing her to fall and injure her thumb.

Frierson seized Stokes’s keys when she fell. Officer Mitchell was observing the

scene and saw Frierson open inmate McGowan’s pen. Mitchell assisted Stokes

and both went for help from other officers because multiple offenders were loose

in the yard. Captain Maxwell testified that there was nothing in the prison

record to indicate that Brown was in any particular danger from his assailants.

This evidence supports the jury’s finding that Brown had not proved a case of

deliberate indifference against Stokes, Mitchell, or Maxwell. Brown has not

established plain error with respect to the jury’s verdict.

Finally, Brown asserts that the jury did not address the claims against

Rogers. Although Brown is correct in that the jury did not address the claim

against Rogers, the district court had granted judgment as a matter of law as to

Rogers. As Brown does not argue that this motion was granted erroneously, he

has abandoned the issue. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir.

1993); Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th

Cir. 1987)

The judgment of the district court is AFFIRMED.

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