“We do not consider arguments raised for the first time on appeal.” (internal quotation marks and citation omitted)
How later courts described this case
- “We do not consider arguments raised for the first time on appeal.” (internal quotation marks and citation omitted)
- “[M]unicipal immunity from punitive damages survived § 1983.”
Written by the judges who cited it.
The opinion
Case: 20-30739 Document: 00516404243 Page: 1 Date Filed: 07/22/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
July 22, 2022
No. 20-30739 Lyle W. Cayce
Clerk
Erie Moore, Jr.; Tamara Green; Tiffany Robinson,
Plaintiffs—Appellants,
versus
LaSalle Management Company, L.L.C., incorrectly named as
LaSalle Corrections L.L.C.; Ray Hanson; Gerald
Hardwell; Roy Brown; Reginald Williams; Kenneth
Hart; Danielle Walker; Duan Rosenthal; Jeremy
Runner; Reginald Curley, incorrectly named as Reginald
Curly; City of Monroe; Sheriff of Ouachita Parish;
Donald Murphy; Chase Wells; Tommy Crowson, incorrectly
named as Officer Crowson; William Mitchell, incorrectly
named as Nurse Mitchell; Alton Hale; Richwood
Correctional Center, L.L.C.; Archie Aultman, incorrectly
named as Aultman,
Defendants—Appellees.
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 3:16-CV-1007
Before Higginson, Willett, and Ho, Circuit Judges.
Don R. Willett, Circuit Judge:
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Erie Moore was arrested for disturbing the peace and taken to a private
prison. One day later, Moore was dead—the victim of a traumatic brain
injury that, experts say, prison staff inflicted through repeated blows to his
head. Indeed, staff had bragged—openly and for years—about punishing
handcuffed inmates with pepper spray and beating them senseless in a
cameraless corridor. Plaintiffs say that’s what happened here.
Some of Plaintiffs’ claims made it past summary judgment. Others did
not. For the reasons below, we AFFIRM in part, REVERSE in part, and
REMAND for proceedings consistent with this opinion.
I
A
Many cities privatize their prisons. Monroe, Louisiana is no
exception. From 2001–2019, the City engaged Richwood Correctional
Center, LLC, to house arrestees and inmates. Their agreement required
Richwood to “operate, manage, supervise and maintain the facility and
provide for the secure custody, care and safekeeping of inmates” in
accordance with certain state standards. Richwood assigned its rights and
obligations under the agreement to LaSalle Management, LLC. In short,
Richwood owned the prison. LaSalle ran it. And as part of running the prison,
LaSalle hired Ray Hanson to serve as warden. In that role, Hanson set policy
for the prison.
What these policies actually were, though, casts a dark shadow over
this case. The City’s agreement with Richwood included instructions
governing the “punishment of inmates.” But paper and practice don’t
always match up. Indeed, there’s some evidence to suggest that Hanson
never read those instructions. And former staff paint a grim picture of what
went as customary punishment at the prison.
2
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Yolanda Jackson is one of those former staffers. She worked at the
prison for about three years. According to Jackson, “[o]n many occasions
she . . . witnessed [guards] including supervisors use chemical spray on
handcuffed prisoners routinely, many, many times.” The practice was
common enough for guards to have a name for it: “pepper spraying mode.”
In fact, two Defendants admitted under oath to using chemical spray on
multiple restrained detainees. And these practices persisted, too, despite
Jackson “advis[ing] supervisors and others that they [were] not allowed to
punish prisoners who are handcuffed.” Guards and supervisors alike advised
Jackson that they’d “do what they want[ed]” with prisoners.
Unfortunately, guards doing what they wanted to prisoners extended
beyond pepper spray, according to Jackson. Cameras at the prison abound—
except in one twelve-by-twelve-foot area. Called the “Four-Way” by the
parties, it’s the one area of the prison with no cameras. Per Jackson, “many”
guards openly bragged to her about taking prisoners to the Four-Way to
“teach them a lesson” off camera through “force.” Even an Assistant
Warden at the prison admitted that both he and guards used the Four-Way
to “interrogate” prisoners. And two prison guards have testified under oath
that they used the Four-Way to interrogate and abuse multiple handcuffed
detainees. As Jackson summarized in her testimony, these practices at the
prison were “wide spread.”
B
Police arrested Erie Moore for “disturbing the peace” at a donut shop
in Monroe, Louisiana. Police then transported Moore to the prison for
booking. As part of the booking process, staff brought Moore to the on-staff
nurse, William Mitchell, for a medical screening. But Moore was agitated and
noncompliant. According to Mitchell, he was unable to properly examine
3
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No. 20-30739
Moore. Without completing Moore’s screening, staff placed Moore into a
lockdown cell.
Lockdown cells are generally used to “cool off or sober up” detainees.
Not this time. Gerald Hardwell was the shift supervisor on duty. He could
have placed Moore in a cell alone. But no. Instead, and without reviewing
Moore’s history or consulting anyone else, Hardwell eventually paired
Moore up with another cellmate. Moore’s new cellmate was Vernon White,
another combative detainee. This arrangement proved fatal.
By early morning the next day, Moore and White had their first fight.
Guards broke them up, only to place them back together. Moore and White
began round two later that afternoon. A guard, Jeremy Runner, suspected
something was wrong after seeing only Moore on a monitor for a long time.
Runner was right.
Runner moved to the cell and found White on the floor. White was
apparently seizing and had blood around his mouth. Runner left to get backup
and the cell’s key. Guards then entered the cell to extract White. Moore
ignored the guards’ verbal instructions, though. In response, Christopher
Loring sprayed Moore in the face with chemical spray. Runner then struck
Moore in the back of the head, knocking him to the ground. Officers then
dragged White into the hall. White later died at a nearby hospital.
Moore, alone in the cell for nearly an hour, removed his shirt and
wiped his face and eyes—noticeably bothered by the pepper spray.
Meanwhile the guards formed a plan to extract Moore from the cell. Among
them were Hardwell, Runner, Reginald Williams, and Reginald Curley.
Moore was sitting on the bottom bunk when Hardwell entered the cell.
Hardwell sprayed Moore in the face again. The guards then left to retrieve
gas masks and returned to extract Moore.
4
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Gas masks retrieved, Hardwell again entered Moore’s cell. Williams
followed. Runner stood outside the door with Curley. With Moore’s back to
the door and hands placed on the top bunk, Hardwell grabbed Moore around
the chest. Hardwell then picked Moore up and moved him toward the open
door. He carried Moore while walking backward. Hardwell then suddenly
pivoted, slamming Moore onto the ground in the process. Moore’s body and
head hit the floor. Subdued, two guards moved to pick up a handcuffed and
face-down Moore. One guard held Moore’s legs. Runner grabbed Moore’s
arms. With Moore in tow, the guards started walking. But then they
stumbled. Moore hit the ground—headfirst. Guards then picked Moore back
up and carried him to the Four-Way.
It’s unclear what all happened during Moore’s roughly two hours in
the Four-Way. As we explain below, we construe the record evidence and
make all inferences in favor of Plaintiffs in this posture. In that light, some
evidence suggests that off-camera guards repeatedly beat and pepper-sprayed
Moore until he lay unconscious. One guard, John Badger, testified that
another guard who had been present in the Four-Way with Moore had
bragged about bringing Moore to the cameraless Four-Way so guards could
“beat him [to] death” and “finish[] him.” Mitchell likewise testified that he
had heard a “commotion” in the Four-Way as guards subdued Moore.
Moore was still responsive at that point. He confirmed that he was “sore”
and that his handcuffs were “too tight.” Mitchell also noticed a “vanilla
wafer”-sized bump on the middle of Moore’s head—not present the day
before during Moore’s screening. Mitchell left but later returned. This time
Moore was unresponsive. But Mitchell did not check Moore’s vitals. All
Mitchell did was to see if he could get Moore to wake up, something he tested
by rubbing Moore’s sternum in a way that would wake a healthy patient.
Moore responded only with a grimace and grunt but remained unconscious.
Mitchell did not report his observations or otherwise treat Moore before
5
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sheriff’s deputies picked up Moore from the prison in connection with
White’s death.
Deputies testified the Four-Way smelled of fresh pepper spray and
Moore’s pants were saturated. When transporting Moore to their vehicles
did not wake him, Deputies realized that something was “obvious[ly]”
wrong. Moore was brought to a hospital soon after. He was comatose and had
to be intubated. Medical personnel determined Moore suffered a fractured
skull. He never woke up. Moore died on November 14, 2015.
At least some experts have pinned Moore’s death to the head trauma
he received in the prison. For example, the parish coroner, Dr. Teri O’Neal,
ruled Moore’s death a “homicide,” caused by “head injuries received while
in jail” creating “pneumonia complicating [those] blunt force head injuries.”
O’Neal said blunt force trauma to the head caused a subdural hematoma. But
after reviewing the video footage depicting the recorded head impacts,
O’Neal declined to conclude which strike to Moore’s head was the source of
the injury. Similarly, one of Moore’s treating physicians, Dr. John Owings,
couldn’t definitively say when Moore sustained his injuries either. He could,
though, narrow things down. Based on Moore’s CT-scans and video footage,
Owings testified that Moore sustained his fatal injury at the prison either after
he was removed from his cell or right before. Other treating physicians agreed
with that assessment. A pre-prison injury, in their view, would have
prevented Moore from physically exerting himself while inside his cell.
C
In the wake of Moore’s death, Plaintiffs sued. They brought various
federal and state-law claims under 42 U.S.C. § 1983 against several prison
staffers, LaSalle, Richwood, and the City. The district court narrowed
Plaintiffs’ claims for trial across eight summary judgment orders. Among
6
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No. 20-30739
other things, it granted summary judgment to Defendants on Plaintiffs’
claims against:
• the Individual Defendants—Runner, Hardwell, Curley,
Williams, and Mitchell—for deliberate indifference;
• the Individual Defendants for having caused Moore’s death;
• Runner, Hardwell, Curley, and Williams for punitive damages;
• the Corporate Defendants—LaSalle and Richwood—for
vicarious liability based on any Individual Defendant violating
federal law;
• the Corporate Defendants, plus the City, for liability under the
Supreme Court’s decision in Monell v. Department of Social
Services; 1 and
• the Corporate Defendants for punitive damages.
With their remaining claims pending for trial, 2 Plaintiffs moved the district
court to deem its judgment on these issues final. 3 The district court granted
the motion, and Plaintiffs now appeal.
1
436 U.S. 658 (1978).
2
Other state and federal claims remain pending in the district court. For example,
excessive-force claims against individual defendants, plus state-law claims the Corporate
Defendants. However, Plaintiffs have—mercifully—“sought to narrow the issues on
appeal.” See Ries v. Quarterman, 522 F.3d 517, 531–32 (5th Cir. 2008) (“Counsel need not
raise every nonfrivolous ground of appeal, but should instead present solid, meritorious
arguments based on directly controlling precedent.” (quoting Schaetzle v. Cockrell, 343 F.3d
440, 445 (5th Cir. 2003))). We review now only those issues they explicitly preserved for
appeal and adequately briefed. We do not address other claims, though, that Plaintiffs
appealed but did not raise in their opening brief. Those claims were abandoned. Akuna
Matata Investments, Ltd. v. Tex. Nom Ltd. P’ship, 814 F.3d 277, 282 n.6 (5th Cir. 2016)
(“Generally, issues not raised in the appellant’s opening brief are considered
abandoned.”).
3
See Fed. R. Civ. P. 54(b).
7
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II
We review summary judgment de novo. 4 Courts may grant summary
judgment on an issue only when “no genuine dispute as to any material fact”
exists “and the movant is entitled to judgment as a matter of law.” 5 A fact
dispute is “genuine” if “a reasonable jury could return a verdict for [the
nonmovant] based on the evidence.” 6 “[W]e must view all evidence and
draw all justifiable inferences in favor of . . . the nonmovant”—here,
Plaintiffs. 7
III
We turn first to Plaintiffs’ § 1983 claims against the Individual
Defendants. Plaintiffs contend that the Individual Defendants acted
deliberately indifferent toward Moore and caused his death. The district
court concluded that Plaintiffs cannot prevail on these claims and that
Mitchell was entitled to qualified immunity. We mostly disagree.
A
The district court concluded that “no proof” supported Plaintiffs’
deliberate-indifference claims. The Fourteenth Amendment protects a
pretrial detainee’s right “not to have [his] serious medical needs met with
deliberate indifference on the part of the confining officials.” 8 Plaintiffs
needed to raise fact disputes over whether each Individual Defendant
4
Batiste v. Lewis, 976 F.3d 493, 500 (5th Cir. 2020) (citation omitted).
5
Id. (quoting Rogers v. Bromac Title Servs., L.L.C., 755 F.3d 347, 350 (5th Cir.
2014)).
6
Coleman v. BP Exploration & Prod., Inc., 19 F.4th 720, 726 (5th Cir. 2021) (citation
omitted).
7
Id.
8
Thompson v. Upshur Cnty., 245 F.3d 447, 457 (5th Cir. 2001) (citations omitted).
8
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(1) “was ‘aware of facts from which the inference could be drawn that a
substantial risk of serious harm exists,’” and (2) “actually drew that
inference.” 9 Plaintiffs have done so.
A reasonable jury could conclude on this record that each Individual
Defendant was aware of inferential facts establishing a substantial risk of
serious harm. Runner personally struck Moore in the head. Runner,
Williams, Hardwell, and Curley all witnessed Moore strike his head on the
prison’s concrete floor repeatedly. Mitchell, likewise, observed Hardwell,
Curley, and Runner getting “pretty rough” with Moore in the Four-Way.
Mitchell also saw a new “knot” on Moore’s head. All of the Individual
Defendants later observed Moore unconscious in the Four-Way, including
Mitchell, who couldn’t wake Moore with a “sternum rub.” And yet, not one
of these Defendants sought medical care for Moore.
Likewise, a reasonable jury could find on this record that each
Individual Defendant actually inferred that a substantial risk of serious harm
existed. Again, each one of them had personal knowledge that Moore had
gone unconscious after suffering strikes to his head—not to mention that
some evidence suggests that Runner, Williams, and Hardwell all later tried
to conceal or downplay the strikes. Indeed, putting Moore at a substantial risk
of serious harm may have been the point. As one guard later bragged, Moore
had been brought to the cameraless Four-Way so guards could “beat him [to]
death” and “finish him.”
9
Dyer v. Houston, 964 F.3d 374, 380 (5th Cir. 2020).
9
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Plaintiffs have met their burden at this stage. A reasonable jury could
find that the Individual Defendants acted deliberately indifferent toward
Moore on this record. 10
B
The district court dismissed all Plaintiffs’ federal and state-law claims
against the Individual Defendants “for the death of Moore due to excessive
force.” For the reasons below, we think that was mostly premature. Save for
claims against Mitchell, Plaintiffs have raised fact disputes on causation
arising from their excessive-force claims.
(1)
The district court reasoned that all these claims “share a common
element: medical causation.” In the district court’s view, “identical
arguments” explained why both sets of claims could not “establish medical
causation.” But that view is a bit misleading. Simply put, causation isn’t so
easy under § 1983. And this case shows why.
The complexity starts with what law governs causation in a § 1983
suit. We’ve explained that Plaintiffs bringing § 1983 claims must show “(1) a
deprivation of a right secured by federal law (2) that occurred under color of
state law, and (3) was caused by a state actor.” 11 Section 1983 is a federal
10
The dissent would hold that Plaintiffs failed to raise a fact dispute on deliberate
indifference. Post at 6–7. We agree with the dissent that there’s evidence going both ways
on this record. Nonetheless, the nonmovant Plaintiffs were entitled to all justifiable
inferences at summary judgement. See Coleman, 19 F.4th at 726. Our characterization of
the record reflects those inferences.
11
Victoria W. v. Larpenter, 369 F.3d 475, 482 (5th Cir. 2004).
10
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statute. Does that mean that federal common law governs causation? 12
Not quite. The Supreme Court has told us to read § 1983’s causation
requirement “against the background of tort liability that makes a man
responsible for the natural consequences of his actions.” 13 Applying that
principle often means looking to “authoritative” treatises, like the
Restatement (Second) of Torts, for “the prevailing view of the American
common-law courts.” 14 So while a state’s caselaw might help us find or
illustrate the prevailing view, it generally doesn’t bind us.
But every rule has an exception. Sometimes state law does bind us on
causation in § 1983 cases—in some ways, at least. We explained one of those
ways in Phillips ex rel. Phillips v. Monroe County. 15 A plaintiff bringing a state-
law wrongful death claim under § 1983, we said, must “prove both the alleged
constitutional deprivation required by § 1983 and the causal link between the
defendant’s unconstitutional acts or omissions and the death of the victim,
as required by the state’s wrongful death statute.” 16 In other words, state law
governs whether there’s a causal link between the constitutional deprivation
and the victim’s death for state wrongful death claims.
12
See Martha A. Field, Sources of Law: The Scope of Federal Common Law, 99 Harv.
L. Rev. 881, 893–94 (1986) (explaining how some “definition[s] of federal common law
include[] much we think of as interpretation . . . leav[ing] no clear-cut line between federal
common law and federal interpretational law” (footnote omitted)).
13
Monroe v. Pape, 365 U.S. 167, 187 (1961), overruled on other grounds by Monell v.
Dep’t of Soc. Servs., 436 U.S. 658, 695–701 (1978).
14
See Field v. Mans, 516 U.S. 59, 72 (1995); id. at 70 (calling the Restatement
(Second) of Torts the “most widely accepted distillation of the common law of torts”); see
also, e.g., Murray v. Earle, 405 F.3d 278, 291 (5th Cir. 2005) (adopting the Restatement’s
view on superseding cause in a § 1983 case).
15
311 F.3d 369 (5th Cir. 2002).
16
Id. at 374 (emphasis added).
11
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So if sometimes we use background principles and other times we use
state-specific principles, then how do we know when to use which? To
answer that we must “pause,” as we did in Phillips, “to emphasize the
importance of the distinction between survival and wrongful death causes of
action.” 17 Claims brought as part of a survival action, we said, “redress[] any
constitutional injuries suffered by the Decedent before his death.” 18 Because
a state’s wrongful-death statute isn’t required for the survivors to recover,
we apply background principles to causation. Indeed, often survivors don’t
even have to prove the cause of the victim’s death to recover. 19 Wrongful
death claims are different, though. Since they “create new causes of action
on behalf of the statutorily-designated persons in order to compensate them
for the death of the decedent,” plaintiffs must prove the cause of the
decedent’s demise under state causation principles to recover. 20
Further complicating matters is that survival actions and wrongful
death claims are often brought together. This case is an exemplar. According
to their Third Amended Complaint, Plaintiffs brought their § 1983 claims
against the Individual Defendants both as Moore’s survivors and for wrongful
death. Plaintiffs even partially mix the two actions together by arguing that
the Individual Defendants’ deliberate indifference is what caused Moore’s
17
Id. at 373 n.1.
18
Id.
19
See Slade v. City of Marshall, 814 F.3d 263, 265–66 (5th Cir. 2016) (explaining
that survivors bringing deliberate-indifference claims do not need to show “a causal link
between [an] alleged denial of medical care claim and the decedent’s death”); see also Estate
of Owensby v. City of Cincinnati, 414 F.3d 596, 604 (6th Cir. 2005) (same); Simpson v. Hines,
903 F.2d 400, 403–04 (5th Cir. 1990) (holding that guards acted with deliberate-
indifference based on their knowledge and conduct in the aftermath of a struggle with a
prisoner, as opposed to the struggle itself causing the prisoner’s death).
20
Phillips, 311 F.3d at 374 (emphasis added).
12
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death. We don’t have to review that mixed question today, though, since the
Individual Defendants didn’t ask for summary judgment on it. We do,
though, need to review the district court’s conclusion that the Individual
Defendants did not cause Moore’s death through their excessive force. 21 But
whether Plaintiffs’ claims are construed as part of a survivorship action or as
arising under Louisiana’s wrongful death statute, we mostly disagree with the
district court. On this record, sans the Mitchell claims, Plaintiffs have at least
raised disputed facts on the cause of Moore’s death.
(2)
We start with causation for Plaintiffs’ excessive-force claims brought
as Moore’s survivors. Again, and as we explained above, Moore’s survivors
do not have to show that the Individual Defendants caused his death to
recover for excessive force. To prevail on an excessive-force claim, a plaintiff
need only show “(1) an injury (2) which resulted directly and only from a use
of force that was clearly excessive, and (3) the excessiveness of which was
clearly unreasonable.” 22 The injury need not be severe. 23 Even so, Plaintiffs’
excessive-force claims based on Moore’s less-than-lethal injuries are still
pending in the district court. So our review of Plaintiffs’ survivorship claims
based on excessive force is limited: Did Plaintiffs raise a fact dispute over if
the Individual Defendants’ excessive force caused a lethal injury to Moore?
Except for Mitchell, Plaintiffs succeeded.
21
The Individual Defendants did not seek summary judgment on the former
question. But the district court granted summary judgment to them on the latter.
22
Ontiveros v. City of Rosenberg, 564 F.3d 379, 382 (5th Cir. 2009) (emphasis
added).
23
See Alexander v. City of Round Rock, 854 F.3d 298, 309 (5th Cir. 2017) (explaining
that the severity of the injury is irrelevant to the unreasonableness of the force).
13
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Our decision in Simpson v. Hines 24 instructs us here. In Simpson, police
arrested a man and put him into a stationhouse cell without having searched
him. 25 Why didn’t they search him? Because he had “arriv[ed] at the
stationhouse in an evidently volatile, drug-affected state, [and] refused to be
searched.” 26 Further, and though we omitted some details in our opinion, 27
the briefs in Simpson explain that the man had concealed marihuana cigarettes
and started smoking them in his cell. After discussing the situation, the police
decided to enter the man’s cell to search him and remove contraband. 28 Ten
police officers entered the man’s cell to conduct the search and seizure,
“collectively us[ing] physical force against him.” 29 The man died as a result.
The police argued, though, “that they [could not] be held individually liable
absent evidence that each defendant’s actions caused severe injuries.” 30 We
rejected that argument, reasoning “the officers discussed beforehand how to
handle the situation and functioned as a unit once inside [the man’s] cell.” 31
In doing so we distinguished situations in which “several separate and
24
903 F.2d 400 (5th Cir. 1990).
25
Id. at 401.
26
Id.
27
See id. (noting that the man “brandished marihuana”); id. at 403 (explaining that
“officers discussed beforehand how to handle the situation” before entering the man’s
cell).
28
Brief for Plaintiff-Appellee at *3–4, Simpson v. Hines, 903 F.2d 400 (5th Cir.
1990) (No. 89-6204), 1990 WL 10081738.
29
Simpson, 903 F.2d at 403.
30
Id.
31
Id.
14
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discrete incidents of official malfeasance” lack “identity of either purpose or
action.” 32
Parallels with Simpson abound in this case. In Simpson the detainee
arrived at the stationhouse intoxicated and refused to cooperate with the
booking process. So too here. In the City’s own words, “Once at Richwood,
Moore refused to cooperate with booking and appeared intoxicated.” In
Simpson a subsequent event (smoking marihuana) compelled police to
discuss entering the man’s cell. Here, too, White and Moore’s altercation
and its aftermath caused the guards to discuss entering “Moore’s cell to
secure and extract [him] in preparation for the Sheriff’s Office’s arrival.” In
fact, the pre-entry discussions appear even more extensive here than in
Simpson. The City admits that in preparation for the final extraction, the
guards sprayed Moore with a chemical spray, “retrieve[d] gas masks,” and
generally “prepared to enter the cell.” Finally, in Simpson the police worked
together as a group to use force to subdue the man in his cell to achieve their
aim, searching for and seizing contraband. So, too, did the guards here. They
worked together to forcibly extract Moore from his cell and subdue him to
achieve their aim, turning Moore over to the Deputies.
Indeed, if this case is distinguishable from Simpson at all on causation
it’s because the record facts here on functioned-as-a-unit causation are even
stronger. Guards took Moore to the cameraless Four-Way right after
extracting him from his cell. As we explain below, there’s a fact dispute over
whether a custom of physically punishing prisoners in the Four-Way existed.
Plus, the district court erred when it granted the Individual Defendants
summary judgment on whether they adhered to that custom by collectively
32
Id.
15
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beating Moore in the Four-Way. 33 The district court found no fact dispute
because the guard who bragged about pepper spraying and beating Moore to
death in the Four-Way “named only Foster.” True, but the guard also said
that “there was four of them beating [Moore],” and that “they had already
pepper sprayed” Moore “several times.” Between those statements and
record evidence placing the Individual Defendants in the Four-Way with
Moore, a reasonable jury could conclude on this record that the Individual
Defendants beat and pepper-sprayed Moore in the Four-Way. 34
On this record, then, Plaintiffs raised a fact dispute for their
survivorship claims on whether the Individual Defendants caused Moore’s
death through excessive force. That is, with one exception—nurse Mitchell.
Plaintiffs do not argue or point to record evidence showing that Mitchell ever
used or was otherwise involved with the use of excessive force against Moore.
Therefore, the district court did not erroneously grant summary judgment to
Mitchell on this issue. 35
33
Plaintiffs’ contention in Reply that “[t]he district court correctly denied
summary judgment on this issue” is somewhat misleading. True, the district court did deny
summary judgment this issue to Defendant Foster, who is not a party to this appeal. But,
as we explain, the district court also granted summary judgment to the Individual
Defendants, who are parties to this appeal, on whether they beat and pepper-sprayed
Moore in the Four-Way.
34
Admittedly there’s a discrepancy between testimony that “four” guards beat
and pepper-sprayed Moore and a fact dispute existing for five of them having done so—
Foster plus the Individual Defendants. We note, however, that the relevant testimony was
not that Foster beat and pepper-sprayed Moore. Rather, the testimony was that Foster had
painted himself as a hero who’d gone to the Four-Way and, unsuccessfully, stopped the
other four guards from “killing” Moore.
35
The dissent disagrees that Simpson supports a fact dispute on causation. In its
view “Simpson dealt with a single discrete event in which the defendants acted in unison,”
but “[t]his case, by contrast, involves several discrete events, separated by hours of time,
and implicating different defendants.” Post at 3. We agree with the dissent that we said in
16
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(3)
That brings us to causation for Plaintiffs’ non-survivorship claims
under Louisiana law. Plaintiffs contend that they have raised a fact dispute
that the Individual Defendants’ actions were “substantial factors” in causing
Moore’s death. The district court concluded they have not. Applying
Louisiana law, it found “Plaintiffs have produced no evidence that any
Defendant played so important a role in producing Moore’s death that
responsibility should be imposed upon him.” Again, we mostly disagree.
Under Louisiana law and excepting Mitchell, Plaintiffs have raised fact
disputes over whether each Individual Defendant’s excessive force was a
substantial factor in causing Moore’s death.
Plaintiffs point us to the Louisiana Supreme Court’s decision in Bonin
v. Ferrellgas, Inc. as governing substantial-factor causation in Louisiana. 36
Under Bonin, Plaintiffs can prove causation by showing “the conduct in
question was a substantial factor in bringing about the accident.” 37 The test
is often used for “cases where there are multiple possible causes-in-fact, but
the trial judge or jury may not be able to conclude that the accident most likely
would not have happened but for any one of the causes.” 38 Louisiana courts
Simpson that officials do not function as a unit when “plaintiffs complain[] of several
separate and discrete incidents of official malfeasance.” Post at 3 (quoting Simpson, 903
F.3d at 403). Where we disagree with the dissent is in its factual characterization of what
happened here. Simply put, a reasonable jury could find on this record that the Individual
Defendants (save for Mitchell) all had the same “identity” of “purpose” and “action” in
dragging Moore from his cell to the Four-Way to finish him. Id. at 403.
36
877 So.2d 89 (La. 2004).
37
Id. at 94.
38
Perkins v. Entergy Corp., 782 So.2d 606, 612 (La. 2001) (citing Frank L.
Maraist & Thomas C. Galligan, Louisiana Tort Law, § 4-3 at 86-88
(1996)).
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consider “whether each of the multiple causes played so important a role in
producing the result that responsibility should be imposed upon each item of
conduct,” and “whether the actor’s conduct has created a force or series of
forces which are in continuous and active operation up to the time of the
harm.” 39
On this record, a reasonable jury could conclude that each Individual
Defendant, except for Mitchell, played an important role in causing Moore’s
death. Video evidence shows Moore’s head striking the ground repeatedly—
strikes caused by Runner punching Moore, Hardwell slamming Moore onto
the ground, and two other guards dropping Moore on the ground while
carrying him. That’s together with evidence that guards bragged that they
had “beat” Moore to “death” in the Four-Way, “finish[ing] him” in the one
area of the Prison without cameras.
Relatedly, a reasonable jury could conclude that these head strikes
formed an unbroken series of forces leading up to Moore’s death from
subdural hematoma. 40 Dr. Nelson, one of Moore’s treating emergency-room
physicians, testified that, more likely than not, Moore suffered his fatal head
trauma no later than five-hours prior to arriving at the hospital. Another of
Moore’s treating physicians, Dr. Owings, similarly testified that Moore
sustained his subdural hematoma while in custody. Not that Plaintiffs needed
expert medical testimony in any event. “[A]s a general rule,” in Louisiana,
expert medical testimony isn’t required when “it is self-evident that” an
action “was a cause in fact of a . . . personal injury”—i.e., when the relevant
39
Bonin, 877 So.2d at 94 (quoting Perkins, 782 So.2d at 612).
40
In other words, there was no superseding cause to break the causal chain. See id.
at 98 (holding that there was no substantial-factor causation because of superseding
causes—an intransigent owner and an incompetent gas company).
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“medical matters” are “within common knowledge.” 41 Few things could be
more self-evident, more within the common knowledge, than that repeated
head strikes could cause a fatal head injury.
On this record, then, Plaintiffs raised a fact dispute for their non-
survivorship claims on whether the Individual Defendants caused Moore’s
death through excessive force. That is, again, except as for Mitchell for the
same reasons Mitchell cannot be held liable for causing Moore’s death when
it comes to Plaintiffs’ survivorship claims. Therefore, the district court did
not erroneously grant summary judgment to Mitchell on this issue either. 42
C
The district court also concluded that Mitchell was entitled to
qualified immunity. We disagree. We recently explained in Sanchez v. Oliver
that employees of “private firm[s] systematically organized to perform the
major administrative task of delivering healthcare services to inmates,
detainees, and juveniles,” like Mitchell, “[are] categorically ineligible to
claim qualified immunity.” 43 The district court did not have the benefit of
41
Lasha v. Olin Corp., 625 So.2d 1002, 1005 (La. 2002) (quoting PROSSER ON
TORTS § 41 (5th ed. 1984)).
42
The dissent would hold that Plaintiffs failed to raise a fact dispute on causation
under Bonin. Post at 4. In its view, because “medical experts said only that each of the
alleged acts ‘possibly’ caused Moore’s injury,” Plaintiffs cannot show that any single act
of head trauma caused by an Individual Defendant was “more likely than not a ‘substantial
factor’” in causing Moore’s death. Post at 4. We disagree. There’s a difference between
whether some act could have caused some result, and whether it actually did. Concurrent
causation in Louisiana is squarely focused on the former since the latter may be impossible
to know. See Perkins, 782 So.2d at 612. As we discussed above, Plaintiffs do not even need
expert testimony for a reasonable jury to believe on this record that any individual head
strike to Moore could have caused his subdural hematoma. Whether the experts
equivocated, or not, on whether any individual head strike was the actual, fatal head strike
simply does not matter for concurrent-causation purposes.
43
995 F.3d 461, 475 (5th Cir. 2021).
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our decision in Sanchez. The parties now agree that Mitchell was not entitled
to qualified immunity. Therefore, the district court incorrectly concluded
that he was.
* * *
In sum, Plaintiffs’ claims against Individual Defendants should have
mostly survived summary judgment. The record supports fact disputes over
whether each Individual Defendant acted deliberately indifferent toward
Moore. As for Plaintiffs’ survivorship and non-survivorship claims, the
record also supports fact disputes—save for against Mitchell—over whether
each Individual Defendant’s acts of excessive force caused Moore’s death.
Finally, the district court erred in holding that Mitchell was entitled to
qualified immunity. Therefore, we AFFIRM the district court so far as it
concluded that Mitchell did not cause Moore’s death through excessive
force, but otherwise REVERSE on the remaining issues Plaintiffs raise on
their claims against the Individual Defendants.
IV
Plaintiffs bring their remaining claims against the Corporate
Defendants and the City. They contend that they’ve raised fact disputes over
(A) the Corporate Defendants’ vicarious liability for the Individual
Defendants’ actions, and (B) the Corporate Defendants’ and City’s direct
liability under Monell. Plaintiffs haven’t preserved their vicarious-liability
argument for appeal, so we do not decide it. Still, they’re right on Monell.
A
We have, apparently, never squarely decided whether plaintiffs can
hold private defendants vicariously liable under § 1983. Plaintiffs say they
can. But the issue just isn’t properly before us. The Corporate Defendants
argued in their motion for summary judgment that our decision in Baker v.
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Putnal 44 prevents Plaintiffs from holding them vicariously liable under
§ 1983. Plaintiffs chose not to respond to this argument in their opposition. 45
Rather, they argued only that they could hold the Corporate Defendants
vicariously liable for their state-law claims for excessive force and failure to
provide medical care. We do not consider arguments “raised for the first time
on appeal.” 46 Therefore, we leave for another day whether plaintiffs can hold
private defendants vicariously liable under § 1983.
B
Still, Plaintiffs also contend that the Corporate Defendants and City
are all directly liable under Monell. To prevail, Plaintiffs must show (1) “an
official policy (or custom),” (2) that “a policy maker can be charged with
actual or constructive knowledge,” and (3) “a constitutional violation whose
‘moving force’ is that policy (or custom).” 47 The district court concluded
that Plaintiffs could not raise a fact dispute under this test. We disagree.
(1)
Under Monell’s first element, Plaintiffs had to raise a fact dispute over
whether an official policy or custom existed that led to a constitutional
violation. 48 The Supreme Court has explained that a custom may give rise to
liability under Monell if the practice is “so persistent and widespread as to
practically have the force of law.” 49 But, as Plaintiffs note, we have held that
44
75 F.3d 190 (5th Cir. 1996).
45
Indeed, our decision in Baker features nowhere in their opposition.
46
Sindhi v. Raina, 905 F.3d 327, 333 (5th Cir. 2018) (quoting LeMaire v. La. Dep’t
of Transp. & Dev., 480 F.3d 383, 387 (5th Cir. 2007)).
47
Newbury v. City of Windcrest, 991 F.3d 672, 680 (5th Cir. 2021).
48
See id.
49
Connick v. Thompson, 563 U.S. 51, 61 (2011).
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plaintiffs need not provide “specific examples . . . to meet the ‘condition or
practice’ element.” 50 Plaintiffs contend they raised a fact dispute under this
standard. They argue that a reasonable jury could conclude on this record
that it was customary for guards to use the Four-Way to punish detainees out
of view of cameras, and for chemical spray to be used to punish restrained
prisoners. We agree.
Record evidence supports Plaintiffs’ argument. Jackson worked at the
Prison for three years. She averred that throughout her tenure the Four-Way
had been used to “teach [prisoners] a lesson.” Plaintiffs also note that an
Assistant Warden “conceded that the Four-Way was used to interrogate
detainees,” and that “two Defendants here [have] testif[ied] under oath
about their use of the camera-free Four-Way to interrogate and abuse five
handcuffed detainees.” And when it comes to the use of chemical spray as a
punishment, Jackson also asserted that correctional officers did so “[o]n
many occasions.” Plus, say Plaintiffs, “[Defendant] Foster described guards
as having gone into ‘pepper spraying mode’ against [a] detainee in the Four-
Way,” and two other Defendants “admitted under oath that they used
chemical spray on five restrained detainees in the Four-Way.”
This evidence suffices. A reasonable jury could conclude a custom
existed to use the Four-Way and chemical spray to punish prisoners. 51
50
Montano v. Orange Cnty., 842 F.3d 865, 876 (5th Cir. 2016).
51
Because there’s a fact dispute underlying an unconstitutional custom, we do not
need to reach Plaintiffs’ alternative, failure-to-train argument. See Connick, 131 S. Ct. at
1359–60 (explaining failure to train as an alternative theory for establishing an
unconstitutional policy or custom under Monell).
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(2)
Under Monell’s second element, Plaintiffs had to raise a fact dispute
over whether a policymaker actually or constructively knew that the Four-
Way and pepper spray were being used to punish prisoners. 52 “A
policymaker,” we have said, is “an official who has the power to make official
policy on a particular issue.” 53 “When he ‘speak[s]’ on it,” in other words,
“his words represent . . . official policy.” 54 The parties do not dispute that
the City delegated final policymaking authority for the prison to the
Corporate Defendants, who then delegated it to Warden Hanson. 55 They do
dispute, though, (a) whether Hanson knew about his guards’ uses of the
Four-Way and pepper spray, and (b) if he did know, whether the City can be
held liable under Monell since Hanson exceeded the scope of his delegated
authority. Even so, and for the reasons below, Plaintiffs have met their
burden to raise a fact dispute on Monell’s second element.
a.
The parties dispute whether Hanson had actual or constructive
knowledge about guards using the Four-Way and pepper spray to punish
prisoners. On this record, though, a reasonable jury could conclude that
Hanson had both.
52
See Newbury, 991 F.3d at 680.
53
Arnone v. Cnty. of Dall. Cnty., 29 F.4th 262, 266 (5th Cir. 2022) (internal
quotations omitted) (quoting Jett v. Dall. Indep. Sch. Dist., 491 U.S. 701, 737 (1989)).
54
Id. (quoting Jett, 491 U.S. at 737).
55
See Longoria ex rel. M.L. v. San Benito Indep. Consol. Sch. Dist., 942 F.3d 258, 271
(5th Cir. 2019) (explaining that Monell liability can extend to a City “when it delegates
policymaking authority,” but not “decisionmaking authority” (first emphasis added)).
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First, Plaintiffs have raised a fact dispute over Hanson’s actual
knowledge. We have explained before that policymakers failing to take
corrective action after their subordinates violate the constitution is some
evidence that they know about an unconstitutional custom. 56 Here, some
record evidence suggests that guards sprayed Moore with pepper spray and
beat him in the Four-Way as punishment. And following Moore’s death,
Hanson took no disciplinary action against anyone involved. Therefore, a
reasonable jury could find on this record that Hanson actually knew that
guards used the Four-Way and pepper spray to punish prisoners.
Second, Plaintiffs have raised a fact dispute on Hanson’s constructive
knowledge. Constructive knowledge can be attributed to a policymaker “on
the ground that [he] would have known of the violations if [he] had properly
exercised its responsibilities, as, for example, where the violations were so
persistent and widespread that they were the subject of prolonged public
discussion.” 57 Plaintiffs point to evidence of exactly that. Jackson testified
that “by talking to other officers involved,” she learned of a “wide spread
[sic] practice” of taking prisoners into the Four-Way to “teach them a
lesson”—i.e., to “punish” prisoners with force. “[M]any officers,” she
swore, “told her of this practice.” Similarly, Jackson also testified that many
guards told her that “they do what they want with prisoners,” to include
“routinely using chemical spray on prisoners for minor transgressions” as
punishment—to include those “who are handcuffed.” Jackson’s testimony
certainly supports widespread and persistent use of the Four-Way and
56
See Grandstaff v. City of Borger, 767 F.2d 161, 171 (5th Cir. 1985) (“If what the
officers did and failed to do . . . was not acceptable to the police chief, changes would have
been made.”); see also Bordanaro v. McLeod, 871 F.2d 1151, 1167 (1st Cir. 1989) (“Post-event
evidence can shed some light on what policies existed in the city on the date of an alleged
deprivation of constitutional right.”).
57
See Pineda v. City of Houston, 291 F.3d 325, 330 (5th Cir. 2002).
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pepper spray to punish prisoners, and that those customs were subject to
prolonged public discussion among prison staff. Therefore, a reasonable jury
could find on this record that Hanson constructively knew that guards used
the Four-Way and pepper spray to punish prisoners.
b.
Still, the City contends that it can’t be liable since its delegation of
authority expressly “prohibited the use of force to ‘punish’ an inmate.” In
other words, that Hanson had no authority to adopt an unconstitutional
custom. But the City’s argument is too clever by half. As Plaintiffs point out,
[i]t is virtually always the case that, when an unwritten custom
is challenged under Monell, that custom conflicts with some
governing written policy or law. If a municipality condones an
unlawful custom, it cannot avoid liability by claiming that it did
not authorize its agents in writing to break the law in the course
of their duties.
Exactly right. And we have rejected the City’s very argument before. As we
explained recently in Arnone v. County of Dallas County, what matters for
attributing a policymaker’s actions to a local government is not whether the
complained of policy does or doesn’t violate the law. “[W]hat matters is the
precise ‘function’ that the policymaker is exercising”—i.e., are they setting
policy for the local government or someone else? 58 And, here, it’s undisputed
that Hanson set policy for the City when it came to running the prison.
Therefore, we cannot agree with the City that it is somehow shielded from
Monell liability on this record.
58
29 F.4th 262, 271 (5th Cir. 2022).
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(3)
Under Monell’s third element, Plaintiffs had to raise a fact dispute
over whether the moving force of the deprivation that Moore endured was
the policy or custom of using the Four-Way and pepper spray to punish
prisoners. 59 And as we explained above, there’s a fact dispute over whether
Moore was beaten in the Four-Way and excessively pepper-sprayed—at least
by Defendant Foster, if not by all the Individual Defendants. Therefore, we
need not address this element further.
* * *
In short, Plaintiffs win on most, but not all their contentions about the
Corporate Defendants’ and City’s liability. We do not decide if Plaintiffs can
or cannot hold the Corporate Defendants vicariously liable for the Individual
Defendants’ actions. But Plaintiffs have raised fact disputes on the Corporate
Defendants’ and City’s direct liability under Monell. Therefore, we reserve
the vicarious-liability question, but REVERSE on Monell liability. 60
59
See Pitrowski v. City of Houston, 237 F.3d 567, 580 (5th Cir. 2001) (“[T]here must
be a direct causal link between the municipal policy and the constitutional deprivation.
Monell describes the high threshold of proof by stating that the policy must be the ‘moving
force’ behind the violation.” (quoting Monell, 436 U.S. at 694)).
60
The dissent would hold that Plaintiffs have failed to raise a fact dispute on the
Corporate Defendants’ and City’s direct liability. See post at 7. Again, though, we must
make all justifiable inferences for the nonmovant Plaintiffs at this stage. See Coleman, 19
F.4th at 726. With those inferences made a reasonable jury could conclude on this record
that the Corporate Defendants and City are directly liable under Monell.
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V
Plaintiffs also contend that they raised fact disputes on punitive
damages against the Corporate Defendants and all the Individual
Defendants, except for Mitchell. The district disagreed and concluded that
punitive damages under § 1983 aren’t available against the Corporate
Defendants as a matter of law. We agree with Plaintiffs.
A
To begin, the parties dispute whether the Corporate Defendants are
immune from punitive damages under § 1983. The Corporate Defendants
concede that private corporations typically are not immune. What they argue,
though, is that private prison-management companies are. Why? Because
private prison-management companies are “engaged in the performance of
acts for the public benefit.” The district court agreed with the Corporate
Defendants. But we agree with Plaintiffs: Private companies may be held
liable for punitive damages under § 1983 whether they performed acts for the
public benefit or not.
The parties agree that the Supreme Court’s decision in City of
Newport v. Fact Concerts, Inc. governs this question. 61 There the Court faced
a question of statutory interpretation: When Congress enacted § 1983, did it
abolish common-law municipal immunity from punitive damages? 62 The
Court answered no. The Court noted that it “consistently has declined to
construe the general language of § 1983 as automatically abolishing such
traditional immunities by implication.” 63 What matters under § 1983,
61
453 U.S. 247, 262 (1981).
62
See id. at 249, 258–59.
63
Id. at 258 (citation omitted).
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explained the Court, is whether (1) an immunity existed at common law when
§ 1983 was enacted, and (2) Congress intended to abrogate that immunity
when it enacted § 1983. 64 Municipalities had “well established” immunity
from punitive damages at common law, said the Court. 65 And nothing about
§ 1983 showed Congress intended to abrogate it. 66 Therefore, municipal
immunity from punitive damages survived § 1983.
The Corporate Defendants, though, can’t get past City of Newport’s
first step. They cannot point to a well-established history of common-law
immunity from punitive damages because it doesn’t exist. Indeed, the
Corporate Defendants do not point to a single case showing that any private
corporation had a common-law immunity from punitive damages—whether
it was “engaged in the performance of acts for the public benefit,” or not. 67
That’s likely why the Corporate Defendants argue that City of Newport’s first
step “is not dispositive nor preclusive of a policy analysis.” Still, “[a]s
middle-management circuit judges, we cannot overrule the Supreme
Court.” 68 And whether it’s a good idea to grant immunity from punitive
damages to the Corporate Defendants is irrelevant. “Such a grant . . . should
64
See id. at 259.
65
Id. at 263.
66
See id. at 265–66.
67
In contrast, Plaintiffs point to plenty of caselaw and scholarship supporting that
no such immunity existed. See, e.g., Smith v. Wade, 461 U.S. 30, 35 (1983) (explaining that
punitive damages exist as a remedy against individual defendants under § 1983); Barbara
Kritchevsky, Civil Rights Liability of Private Entities, 26 Cardozo L. Rev. 35, 77, 77
n.293 (2004) (“Corporations were not immune from liability for punitive damages in
1871.”).
68
Sims v. Griffin, No. 21-40457, 2022 WL 1772258, at *3 n.17 (5th Cir. June 1,
2022) (quoting Whole Woman’s Health v. Paxton, 978 F.3d 896, 920 (5th Cir. 2020)
(Willett, J., dissenting), rev’d en banc, 10 F.4th 430 (5th Cir. 2021)).
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be the product of a reasoned decision by the policymaking branch of our
Government.” 69 Not us.
The district court erred in concluding that the Corporate Defendants
were immune from punitive damages. Nothing supports that they would have
been immune at common law. We cannot create that immunity for them now.
B
To prevail on punitive damages, Plaintiffs must show that “the official
conduct [was] ‘motivated by evil intent’ or demonstrate[d] ‘reckless or
callous indifference’ to a person’s constitutional rights.” 70 Reckless or
callous indifference “requires ‘recklessness in its subjective form,’ i.e. ‘a
“subjective consciousness” of a risk of injury or illegality and a “criminal
indifference to civil obligations.”’” 71 The district court concluded that
Plaintiffs could not meet that standard—that they had “no facts” to support
them. We disagree.
A reasonable jury could conclude on this record that Plaintiffs are
entitled to punitive damages against Runner, Hardwell, Williams, and
Curley. We explained above how the record could support a jury finding that
each of these Defendants acted deliberately indifferent toward Moore’s
serious medical needs. Showing deliberate indifference requires showing a
defendant was subjectively aware that “a substantial risk of serious harm”
69
Seminole Tribe of Fl. v. Florida, 517 U.S. 44, 99 (1996) (Stevens, J., dissenting);
see also Erie R. Co. v. Tompkins, 304 U.S. 64, 78 (1938) (“There is no federal general
common law.”).
70
Sockwell v. Phelps, 20 F.3d 187, 192 (5th Cir. 1994).
71
Williams v. Kaufman Cnty., 352 F.3d 994, 1015 (5th Cir. 2003) (quotations
omitted).
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existed and was indifferent to it. 72 Plaintiffs have therefore met their burden
to raise a fact dispute over whether each of these Individual Defendants
demonstrated reckless or callous indifference to Moore’s constitutional
rights.
A reasonable jury could also conclude on this record that Plaintiffs are
entitled to punitive damages against the Corporate Defendants. We
explained above how the record could support a jury finding that the
Corporate Defendants’ policymaker, Hanson, knew about widespread uses
of excessive force in the prison—specifically, that guards used the Four-Way
and pepper spray to physically punish prisoners. At a minimum, this raises a
fact dispute over whether Hanson acted criminally indifferent toward illegal
customs that exposed his prisoners to an unnecessary risk of injury.
* * *
In sum, Plaintiffs’ claims for punitive damages should have survived
summary judgment. The Corporate Defendants are not immune, and
Plaintiffs have raised fact disputes over whether the Individual Defendants—
save for Mitchell—and the Corporate Defendants—through their
policymaker, Hanson—acted with reckless or callous indifference.
Therefore, we REVERSE the district court’s conclusions otherwise.
VI
The record in this case is beyond troubling. But Plaintiffs still have a
way to go. With fact disputes galore, it will take a jury to decide to what relief,
if any, and against whom, if anyone, Plaintiffs are entitled.
AFFIRMED in part, REVERSED in part, and REMANDED for
proceedings consistent with this opinion.
72
See Dyer, 964 F.3d at 380.
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James C. Ho, Circuit Judge, concurring in part and dissenting in part:
I’ll begin with where the panel majority and I agree. I’m sure we agree
that “[p]olice officers and prison guards sometimes must use physical force
to enforce our laws and keep people safe.” Aucoin v. Cupil, 958 F.3d 379, 380
(5th Cir. 2020). And we also agree that, “as with any use of government
power, the law places important limits on the use of such force.” Id. After
all, “[p]eople are imperfect. And the greater the power, the greater our fear
of abuse.” Id.
“So when a prison inmate engages in willful misconduct, a prison
guard may use reasonable force to restrain him—but after the inmate
submits, there is no need, and thus no justification, for the further use of
force.” Id. “Being violently assaulted in prison is simply not part of the
penalty that criminal offenders pay for their offenses against
society.” Alvarez v. Akwitti, 997 F.3d 211, 213 (5th Cir. 2021) (quotations
omitted).
Our agreement also extends to many of the facts presented in this
particular case—namely, that Plaintiffs have presented sufficient evidence
that one or more defendants may have violated these principles by using
excessive force in restraining Moore. Plaintiffs will be able to proceed on a
number of their claims accordingly, as the district court has already held.
But as for the claims denied by the district court and presented by
Plaintiffs in this appeal—Plaintiffs’ survivorship and wrongful death claims
arising out of Moore’s death, their deliberate indifference claims, and their
Monell claims—I agree with the district court that Plaintiffs have not carried
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their burden. The majority disagrees. Accordingly, I respectfully dissent in
part. 1
I.
Start with Plaintiffs’ survivorship and wrongful death actions. It’s
assumed for purposes of this appeal that (1) Moore engaged in physically
threatening behavior that made it difficult in the extreme for prison guards to
handle him; (2) one or more guards used excessive force in handling him; and
(3) Moore later died from a subdural hematoma. But Plaintiffs must also
present evidence, sufficient to defeat summary judgment, showing who
caused Moore’s death. And that’s what’s missing here.
Plaintiffs cannot survive summary judgment under standard
principles of causation. They attribute Moore’s death to four possible acts,
each carried out by one or more different defendants—there’s (1) Officer
Runner’s punch inside the cell, (2) Officer Hardwell’s body slam while
removing Moore from the cell, (3) two officers accidentally dropping Moore
while carrying him to the Four-Way, and (4) the alleged beating that occurred
off-camera in the Four-Way. Plaintiffs’ experts speculate only that it was
possible that one of these acts might have caused the fatal injury. But they are
unable to opine on which of these acts they think caused Moore’s death. And
considering that one of these four acts (the accidental dropping) was entirely
lawful, that means that Plaintiffs’ experts are unable to conclude that
Moore’s death was in fact the result of unlawful conduct.
For example, when asked whether Hardwell’s body slam caused the
injury, one expert answered that “all I can say” is that it’s “possible.”
Another expert testified that “I can’t tell you what specific event caused
1
I agree with the majority that Nurse Mitchell did not cause Moore’s death
through excessive force and thus concur in part.
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[Moore’s] subdural hematoma. And, having practiced trauma surgery for
thirty year[s], I don’t think anybody could put their finger on that given at
least evidence that I know of that exists.” Still another expert testified that
he “can’t offer a medical opinion as to what the specific trauma was that
resulted in [Moore’s] subdural hematoma.”
In sum, Plaintiffs present no expert testimony or other evidence that
would allow a fact finder to attribute Moore’s fatal injury to the conduct of a
specific defendant. A jury would thus have no basis to conclude that any
particular defendant unlawfully caused Moore’s death.
The majority relies on two theories of concurrent causation: the
“function as a unit” theory from Simpson v. Hines, 903 F.2d 400 (5th Cir.
1990), and the “substantial factor” theory from Bonin v. Ferrellgas, Inc., 877
So.2d 89 (La. 2004). But neither of these theories work in light of the
evidence available in the record of this case.
Simpson involved the collective use of excessive force by ten officers
acting as a unit, resulting in the death of an inmate. “[T]en officers entered
Simpson’s cell and collectively used physical force against him.” 903 F.2d
at 403. One officer “put his arm around Simpson’s neck while the other
officers grabbed Simpson’s arms and legs.” Id. at 402. Then “[t]he officers
forced Simpson to the floor and attempted to handcuff him while” one officer
“sat on Simpson’s chest.” Id. Simpson never got back up, and he was found
dead hours later. Id.
So Simpson dealt with a single discrete event in which the defendants
acted in unison. This case, by contrast, involves several discrete events,
separated by hours of time, and implicating different defendants. So Simpson
does not apply to the facts presented here. As Simpson itself makes clear, it
would be “inapposite” to presume concurrent causation if the “plaintiffs
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complained of several separate and discrete incidents of official
malfeasance.” Id. at 403. 2
Nor does the substantial factor theory of causation recognized in
Bonin apply here. Here’s how Bonin describes this theory:
Cause-in-fact is generally a “but for” inquiry, which
tests whether the accident would or would not have occurred
but for the defendant’s substandard conduct. However, where
there are concurrent causes of an accident, the proper inquiry
is whether the conduct in question was a substantial factor in
bringing about the accident. . . . In considering the substantial
factor test, this Court has . . . considered “whether each of the
multiple causes played so important a role in producing the
result that responsibility should be imposed upon each item of
conduct, even if it cannot be said definitively that the harm
would not have occurred ‘but for’ each individual cause.”
877 So.2d at 94 (citations omitted).
To succeed under this theory, then, “the plaintiff must prove by a
preponderance of the evidence that the defendant’s conduct was a
substantial factor bringing about the complained of harm.” Perkins v. Entergy
Corp., 782 So.2d 606, 612 (La. 2001).
Here, no rational jury could conclude by a preponderance of the
evidence that any defendant’s conduct was a “substantial factor” in bringing
about Moore’s death. The medical experts said only that each of the alleged
acts “possibly” caused Moore’s injury. That’s a far cry from saying that the
act was more likely than not a “substantial factor,” i.e., that the act “played
2
To be sure, the majority holds that there’s sufficient evidence that the individual
defendants beat Moore in the Four-Way, which, if true, could theoretically support
causation under Simpson. But there’s not sufficient evidence that the individual defendants
in this appeal were involved in the alleged beating. Badger’s testimony named only Foster,
and Foster is not a party to this appeal.
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so important a role in producing the result that responsibility should be
imposed.” Bonin, 877 So.2d at 94 (quotations omitted).
Consider, by contrast, the case of Horton v. Blackrock Aggregates, LLC,
213 So.3d 429 (La. Ct. App. 2017). In Horton, a man was killed when a
concrete wall collapsed on top of him. Three defendants contributed to the
man’s death: Langkop, BAC, and Baker. One expert testified that BAC’s
excavation near the wall “was the predominant cause of the wall’s
collapse.” Id. at 439. The same expert also testified that Langkop’s
pressure-washing was “the final straw that caused the wall to collapse.” Id.
at 440. Another expert blamed Baker, testifying that the wall “had a strong
probability of eventual collapse on the day it was built because it was not
properly constructed” by Baker and thus “it would have eventually collapsed
no matter what.” Id.
So in Horton, the plaintiffs were able to prove by a preponderance of
the evidence that each defendant’s conduct was a “substantial factor” in
bringing about the injury. Not so here. No expert testified that any
defendant’s conduct was the “predominant cause” of Moore’s death or had
a “strong probability” of causing the fatal injury. In fact, there’s no evidence
that any defendant was even a likely or presumed cause of Moore’s death.
Rudimentary principles of causation foreclose liability in cases such as
this. The district court was correct to grant summary judgment.
II.
Next consider Plaintiffs’ deliberate indifference claims. Most of the
“facts” that the majority invokes to establish deliberate indifference cannot
be found in the record.
For example, the majority claims that the individual defendants “all
witnessed Moore strike his head on the prison’s concrete floor repeatedly.”
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Ante, at 9. But I don’t see support for this claim in the record—it’s not even
clear from the videos when exactly Moore hit his head. Of course, we must
assume at summary judgment that Moore did in fact hit his head during one
or more of the incidents captured on video. But it’s too much to assume that
each defendant knew that, given how fast the events took place, and given
that the defendants were not all in a position to even see whether Moore’s
head hit the ground. It’s also puzzling for the majority to suggest that the
guards were deliberately indifferent to Moore’s medical needs, given that
those same guards observed the prison’s nurse check on Moore several
times. In the majority’s view, the guards could not rely on a medical
professional’s judgment that there was no significant risk to Moore’s health.
Another example: The majority claims that Nurse Mitchell
“observed” guards getting “pretty rough” with Moore in the Four-Way—
implying that Mitchell witnessed physical abuse. Ante, at 9. Curiously, the
majority relies on Plaintiffs’ briefing for this claim—not the record. In his
deposition, Mitchell explained that it was hard to secure Moore, because he
was “agitated and irate and fighting.” Mitchell was then asked if he thought
“it was strange that [Moore] was sleeping after having been so active with
the officers.” Mitchell said no, because “[t]rying to get [Moore] under
control was pretty rough.” So all Mitchell meant by “pretty rough” was that
it was hard to secure Moore. He wasn’t suggesting that he witnessed physical
abuse.
The majority also faults Mitchell for failing to provide medical care (1)
after seeing the knot on Moore’s forehead and (2) after Moore failed to wake
from the sternum rub. Ante, at 9. But Plaintiffs’ expert testified upon
viewing a photograph of the knot that “there’s nothing here that obviously
indicates that there would be a severe underlying head injury.” And even
assuming that Mitchell should have known that something was wrong after
performing the sternum rub, “the failure to alleviate a significant risk that the
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official should have perceived, but did not[,] is insufficient to show deliberate
indifference.” Domino v. Texas Dep’t of Crim. Just., 239 F.3d 752, 756 (5th
Cir. 2001) (cleaned up). See also Dyer v. Houston, 964 F.3d 374, 381 (5th Cir.
2020) (“[D]eliberate indifference cannot be inferred merely from a negligent
or even a grossly negligent response to a substantial risk of serious harm.”)
(quotations omitted); Cleveland v. Bell, 938 F.3d 672, 676 (5th Cir. 2019)
(“[A]ctual knowledge is an essential element of Plaintiffs’ burden.”).
“Deliberate indifference is an extremely high standard to meet.”
Domino, 239 F.3d at 756 (emphasis added). The majority does not cite a
single case that would allow a reasonable jury to find deliberate indifference
here, and I have found none. Accordingly, the district court was once again
correct to grant summary judgment.
III.
The majority is also unable to point to record evidence sufficient to
support liability against the corporate defendants and the city under Monell
v. Dep’t of Soc. Servs., 436 U.S. 658 (1978).
For example, to establish an unlawful custom, the majority claims that
the prison guards unlawfully pepper sprayed inmates with such frequency
that they even had a name for the practice—they called it “pepper spraying
mode.” Ante, at 3. But there is no record evidence to support this claim.
The phrase “pepper spraying mode” comes from Badger’s deposition. In
that deposition, Badger merely relayed what Foster said to him: “[Foster]
said they called him, and when he got there . . . they was in pepper spraying
mode.” There’s no indication that this phrase was a name for a practice
within the prison. Not even Plaintiffs suggest as much.
To take another example, the majority says that the assistant warden
“admitted” that the Four-Way was used to “interrogate” prisoners. Ante,
at 3. But he admitted no such thing. The word “interrogate” comes from
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Plaintiffs’ brief, not the assistant warden’s deposition. In his deposition, the
assistant warden said only that he and guards sometimes talked to inmates in
the Four-Way. He specifically denied any practice of bringing inmates to the
Four-Way, much less a practice of bringing them there for the purpose of
interrogation or physical abuse.
The majority also tries to establish the existence of an unlawful
custom by pointing to (1) Yolanda Jackson’s vague and conclusory testimony
and (2) an admission by two guards to having pepper sprayed inmates in the
Four-Way a year after Moore’s death (the majority cites this confession
twice). The majority then simply declares, without citing a single case:
“This evidence suffices.” Ante, at 22.
But established precedent imposes a far higher bar for liability under
Monell than that. A custom may give rise to liability under Monell only if the
unlawful practice is “so persistent and widespread as to practically have the
force of law.” Connick v. Thompson, 563 U.S. 51, 61 (2011). The pattern of
behavior “must have occurred for so long or so frequently that the course of
conduct warrants the attribution to the governing body of knowledge that the
objectionable conduct is the expected, accepted practice of . . .
employees.” Davidson v. City of Stafford, 848 F.3d 384, 396 (5th Cir. 2017)
(quotations omitted). A pattern thus requires “similarity, specificity, and
sufficiently numerous prior incidents.” Id. “Showing a pervasive pattern is
a heavy burden.” Sanchez v. Young Cnty., 956 F.3d 785, 793 (5th Cir. 2020).
The majority nowhere acknowledges this heavy burden. See, e.g.,
Fraire v. City of Arlington, 957 F.2d 1268, 1278 (5th Cir. 1992) (to prevail
under Monell, “[w]e have consistently required a plaintiff to plead specific
facts, not merely conclusory allegations”) (quotations omitted); Peterson v.
City of Fort Worth, 588 F.3d 838, 851 n.4 (5th Cir. 2009) (finding no pattern
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even though there were 27 complaints of excessive force over four years
against police officers).
***
In this appeal from the grant of summary judgment, we construe the
evidence in Plaintiffs’ favor. But that doesn’t give us license to prop up
Plaintiffs’ case with evidence that doesn’t exist—or to treat Plaintiffs’
briefing as if it were the record. Nor does it license us to make legal
pronouncements contrary to our precedent. I respectfully dissent in part.
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