Miller v. Harrison County MS

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

December 23, 2009

No. 08-61073 Charles R. Fulbruge III

Summary Calendar Clerk

RODERICK CLARK MILLER

Plaintiff - Appellee

v.

CAPTAIN RICK GASTON, Booking Supervisor, Officially and In His

Individual Capacity

Defendant - Appellant

Appeal from the United States District Court

for the Southern District of Mississippi

USDC No. 1:07-CV-541

Before REAVLEY, DAVIS, and HAYNES, Circuit Judges.

PER CURIAM:*

This is an interlocutory appeal from the district court's denial of Appellant

Rick Gaston's motion for summary judgment and claim of qualified immunity.1

For the reasons set forth below, we REVERSE the district court order and

RENDER judgment in favor of Gaston.

*

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.

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Appellee Miller failed to respond to Gaston's motion for summary judgment and has

similarly failed to respond to Gaston's appeal.

No. 08-61073

As this is an interlocutory appeal of a denial of qualified immunity, our

jurisdiction extends "only 'to the extent that [the denial of summary judgment]

turns on an issue of law." Kinney v. Weaver, 367 F.3d 337, 346 (5th Cir. 2004)

(en banc) (quoting Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S. Ct. 2806 (1985))

(brackets in Kinney). "Stated differently, in an interlocutory appeal we cannot

challenge the district court's assessments regarding the sufficiency of the

evidence-that is, the question whether there is enough evidence in the record for

a jury to conclude that certain facts are true." Id. at 346-47. Instead, we

"consider only whether the district court erred in assessing the legal significance

of the conduct that the district court deemed sufficiently supported for purposes

of summary judgment." Id. at 348 (citing Behrens v. Pelletier, 516 U.S. 299, 313,

116 S.Ct. 834 (1996); Johnson v. Jones, 515 U.S. 304, 313, 115 S.Ct. 2151 (1995)).

Nevertheless, "[w]here, as here, the admissibility of particular evidence is

critical to a summary judgment founded on qualified immunity, this court has

not hesitated to review the admissibility of the evidence on appeal." Mersch v.

City of Dallas, Tex., 207 F.3d 732, 735 (5th Cir. 2000) (reversing district court's

denial of qualified immunity on summary judgment when it was solely based on

inadmissible evidence) (citing Hayter v. City of Mount Vernon, 154 F.3d 269, 274

(5th Cir. 1998)).

In the instant case, the district court concluded that Gaston, who was

Supervisor of Booking at the detention center where Miller was held, did not

personally engage in the constitutional deprivations allegedly committed against

Miller, nor did Gaston have any knowledge of them. The district court, however,

concluded that a genuine issue of fact existed over whether Gaston violated 42

U.S.C. § 1983 by failing to properly supervise his deputies who did allegedly

abuse Miller. The court also found a genuine dispute of fact existed over

whether Gaston conspired with others to deprive Miller of his civil rights under

§ 1985, and whether Gaston was otherwise liable under state law. The district

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No. 08-61073

court made these determinations based exclusively on Miller's deposition

testimony. In his deposition, Miller stated that he heard other parties testify in

an unrelated proceeding that Gaston allowed prisoner abuse by his deputies and

that Gaston implemented his own policies of "abuse" and "torture." Miller

further stated that Gaston's abusive practices were "common knowledge."

The evidence in Miller's deposition is hearsay that is not subject to any

qualifying exception. See F ED. R. E VID. 801(c) (defining hearsay as "a statement,

other than one made by the declarant while testifying at the trial or hearing,

offered in evidence to prove the truth of the matter asserted"). As Miller's

testimony regarding Gaston's alleged liability is hearsay, it is inadmissible for

summary judgment purposes. See Fowler v. Smith, 68 F.3d 124, 126 (5th Cir.

1995) ("Evidence on summary judgment may be considered to the extent not

based on hearsay or other information excludable at trial."); Duplantis v. Shell

Offshore, Inc., 948 F.2d 187, 192 (5th Cir. 1991) ("Material that is inadmissible

will not be considered on a motion for summary judgment because it would not

establish a genuine issue of material fact if offered at trial and continuing the

action would be useless.") (internal quotes and citations omitted).

Miller's deposition testimony is the only evidence the district court cites

that implicates Gaston in Miller's alleged harm. Such evidence is therefore

critical to the district court's denial of summary judgment. Indeed, "[w]ithout

that testimony, [Miller] has no case." Mersch, 207 F.3d at 737. As this evidence

is clearly inadmissible, the district court committed manifest error in denying

Gaston summary judgment on his claim of qualified immunity. See id.

Accordingly, we REVERSE the district court order denying judgment for

the defendant Gaston and RENDER judgment in favor of Gaston.

REVERSED and RENDERED.

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