Watts v. Smart

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

May 1, 2009

No. 08-40381

Summary Calendar Charles R. Fulbruge III

Clerk

JERMAINE WATTS

Plaintiff-Appellant

v.

S SMART, Sergeant Collin County Book-In; E MYERS, Deputy, Collin County;

COLLIN COUNTY SHERIFF'S DEPARTMENT; COLLIN COUNTY; COLLIN

COUNTY DETENTION FACILITY; UNIDENTIFIED OFFICERS, McKinney

Police Department; SHERIFF TERRY BOX, Sheriff Collin County Texas;

MCKINNEY POLICE DEPARTMENT; BEST, McKinney Police Officer;

BLESSING, McKinney Police Officer; LEMONDS, McKinney Police Department;

C WINDSOR, Officer, McKinney Police Department

Defendants-Appellees

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 4:07-CV-433

Before JOLLY, BENAVIDES, and HAYNES, Circuit Judges.

PER CURIAM:*

Jermaine Watts, Texas prisoner # 173046, appeals the district court’s

grant of summary judgment for Defendants Smart and Meyer and Sheriff Box

and Collin County and the dismissal of his 42 U.S.C. § 1983 complaint. As an

*

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. 08-40381

initial matter, Watts’s motion to supplement the record is denied as unnecessary

because the documents are already in the district court record.

Watts alleged that the defendants used excessive force on him at the Collin

County Detention Facility (CCDF) while he was in restraints. Watts does not

brief the district court’s dismissal of the CCDF, the Collin County Sheriff’s

Department, and the McKinney Police Department pursuant to F ED. R. C IV. P.

12(b)(6). Nor does he address the district court’s grant of summary judgment for

the unserved defendants. He has therefore abandoned appellate review of the

district court’s dismissal of those defendants. See Yohey v. Collins, 985 F.2d 222,

224-25 (5th Cir. 1993). Similarly, Watts failed to brief his failure to train

allegation against Sheriff Box and Collin County. Accordingly, he has

abandoned appellate review of the adverse judgment on that claim. Id.

We review the grant of a motion for summary judgment de novo. Hinojosa

v. Butler, 547 F.3d 285, 295 (5th Cir. 2008). We will affirm a summary judgment

if “‘there is no genuine issue as to any material fact’ and the moving party is

‘entitled to judgment as a matter of law.’” Id. (quoting F ED. R. C IV. P. 56(c)). We

view the evidence and the inferences from the record in the light most favorable

to the nonmovant. Id. (citation and internal quotation marks omitted).

The district court determined that Defendants Smart, Meyer, and Box

were entitled to qualified immunity. “Qualified immunity protects government

officials ‘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.’” Lytle v. Bexar County, Tex., ___ F.3d ___, 2009 WL

428452, * 3 (5th Cir. 2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982)). Whether a government official is entitled to qualified immunity for an

alleged constitutional violation is determined by the two-step analysis of Saucier

v. Katz, 533 U.S. 194 (2001), overruled in part by Pearson v. Callahan, 129 S. Ct.

808 (2009). Lytle, 2009 WL 428452 at *3.

The threshold constitutional violation question is “whether, taking the

2

No. 08-40381

facts in the light most favorable to the plaintiff, the officer’s alleged conduct

violated a constitutional right.” Id. (citing Saucier, 533 U.S. at 201). If the court

determines that there was a constitutional violation, the court moves to the

second step, which involves “determining whether the law was sufficiently clear

that a reasonable officer would have known that his conduct violated the

constitution.” Id. Stated another way, the court asks “whether the law lacked

such clarity that it would be reasonable for an officer to erroneously believe that

his conduct was reasonable.” Id. at *4.

Whether Defendants Smart and Meyer violated the constitutional rights

of Watts as a pretrial detainee is governed by the Due Process Clause of the

Fourteenth Amendment. See Brothers v. Klevenhagen, 28 F.3d 452, 455-56 (5th

Cir. 1994) (citing Valencia v. Wiggins, 981 F.2d 1440, 1443-45 (5th Cir. 1993)).

The question under this analysis is whether the force applied was “in a good

faith effort to maintain or restore discipline, or maliciously and sadistically for

the very purpose of causing harm.” Valencia, 981 F.2d at 1446 (citing Hudson

v. McMillian, 503 U.S. 1, 5 (1992)). Whether Sheriff Box, and concomitantly

Collin County, may be held liable under § 1983 depends on whether the Sheriff

(1) affirmatively participated in acts that caused the constitutional deprivation,

or (2) implemented unconstitutional policies that causally resulted in Watts’s

constitutional injury. See Bd. of the County Comm’rs v. Brown, 520 U.S. 397,

403 (1997); Gates v. Tex. Dep’t of Protective and Regulatory Servs., 537 F.3d 404,

435 (5th Cir. 2008); Williams v. Kaufman County, 352 F.3d 994, 1013-14 (5th

Cir. 2003).

The defendants’ attestations that Officer Meyer employed “distraction

strikes” conflict with Watts’s assertion that the strike came from a punch and

the medical records stating the that he received a direct blow from a fist. The

videotape the defendants have submitted does not resolve this factual dispute.

The defendants’ attestations that Watts attempted to bite Officer Meyer is also

contradicted by Watts’s affidavit. The videotape does not resolve that factual

3

No. 08-40381

dispute. In fact, the videotape shows that Watts was struck numerous times and

kneed several times as he lay face down on the floor of the booking area. Watts

has therefore identified record evidence that gives rise to genuine fact issues as

to whether the force Sergeant Smith and Officer Meyer applied was excessive

and whether their conduct was objectively reasonable. Therefore, the district

court erred when it granted Sergeant Smith and Officer Meyer summary

judgment. See Hinojosa, 547 F.3d at 295; Valencia, 981 F.2d at 1446.

Sheriff Box’s affidavit establishes, and Watts does not contest, that Sheriff

Box had no personal involvement with the force used on him. Watts concedes

that the Sheriff’s Use of Force policy is not unconstitutional. An official policy,

however, can also be “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.” Brown v. Bryan County, OK, 219 F.3d 450,

457 (5th Cir. 2000) (internal quotation marks and citation omitted). Watts

argues that Sheriff Box condoned a patten of the use of excessive force on CCDF

inmates.

Watts’s affidavit states that six inmates at the CCDF were assaulted while

they were in restraints. He also submitted the affidavits of two of the inmates.

These affidavits create a genuine issue of material fact regarding whether

Sheriff Box implemented an unconstitutional policy on the use of force. See

Brown, 219 F.3d at 457; Valencia, 981 F.2d at 1443-45. Thus, the district court

erred when it determined that, as a matter of law, Sheriff Box enjoyed qualified

immunity and was entitled to summary judgment. Concomitantly, the district

court erred when it granted summary judgment for Collin County because a

municipality is liable under § 1983 if a plaintiff identifies a municipal policy or

custom that caused the plaintiff's injury. See Brown, 520 U.S. at 403; Williams,

352 F.3d at 1013-14.

Accordingly, the district court’s summary judgment for Defendants Smart,

4

No. 08-40381

Meyer, Box, and Collin County is VACATED, and the case is REMANDED to the

district court for further proceedings as to these defendants. The district court’s

grant of summary judgment for the unserved defendants is AFFIRMED. The

district court’s Rule 12(b)(6) dismissal of the CCDF, the Collin County Sheriff’s

Department, and the McKinney Police Department is AFFIRMED. Motion to

supplement the record DENIED as unnecessary.

5