Cruz v. Cervantez

Case: 22-10483 Document: 115-1 Page: 1 Date Filed: 03/20/2024

United States Court of Appeals

for the Fifth Circuit

____________ United States Court of Appeals

Fifth Circuit

FILED

No. 22-10483 March 20, 2024

____________

Lyle W. Cayce

Clerk

Eric Cruz,

Plaintiff—Appellant,

versus

Officer Domingo Cervantez,

Defendant—Appellee.

______________________________

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 5:16-CV-4

______________________________

Before Stewart, Dennis, and Wilson, Circuit Judges.

Cory T. Wilson, Circuit Judge:

This appeal concerns an evidentiary ruling during trial and its effect

on the jury’s verdict for Officer Domingo Cervantez as to the deliberate

indifference claims brought against him by Eric Cruz pursuant to 42 U.S.C.

§ 1983. Cruz alleged violations of his constitutional rights arising out of

Cervantez’s failure to protect Cruz from his cellmate while he was a pretrial

detainee at the Lubbock County Detention Center (LCDC). At trial, the jury

agreed that Cervantez violated Cruz’s constitutional rights by showing

deliberate indifference but decided that Cervantez was nonetheless entitled

to qualified immunity because he did not act unlawfully, “in light of clearly

1

Case: 22-10483 Document: 115-1 Page: 2 Date Filed: 03/20/2024

No. 22-10483

established law and the information [he] possessed.” Cruz, now pro se,

contends that the district court abused its discretion in excluding evidence of

disciplinary action taken against Cervantez following the underlying

incidents. Because Cruz fails to show that any error affected his substantial

rights, we affirm.

I.

A.

According to the evidence adduced at trial, on June 13, 2015, there

were two incidents between Cruz and his cellmate Spencer Terry in their cell,

number 219: one in the late morning or around noon, and one just after 2:00

p.m. 1 Cell 219 was on the second floor of the cell block and to the right of

Cervantez’s officer station, which was on the first floor situated in the center

of the cell block.

Cruz testified that the first incident was “pretty quick” but that Terry

caused injuries to Cruz’s head and neck and that Cruz “had some noticeable

marks across [his] face . . . .” Several inmates gathered around Cruz and

Terry’s cell door to watch the altercation.

Cruz testified that afterwards, Cervantez called Cruz to his desk to

inquire about Cruz’s injuries, and Cruz, fearing for his safety, asked

Cervantez to move him to a different cell. Cruz testified that Cervantez told

him to wait until the shift change later that day. Testimony at trial, as well as

video footage of the noon altercation, suggested that there was enough

commotion in and around the cell that a reasonable officer would have taken

a closer look. However, there was conflicting evidence about precisely what

_____________________

1

Cervantez testified that the first incident “was just a little disagreement” at 10:00

a.m. Cruz testified that the first incident occurred at about noon. Video footage and a

report by Sergeant Brenda Hassell indicate that the first incident occurred just after noon.

2

Case: 22-10483 Document: 115-1 Page: 3 Date Filed: 03/20/2024

No. 22-10483

Cervantez could see as events unfolded, as Cervantez testified that the

stairwell in the cellblock obscured his vision into Cell 219.

Cervantez characterized the first incident as a “quick little

argument,” after which he questioned Cruz and Terry about whether

Cervantez needed to know anything. When they both responded “no,”

Cervantez considered the disagreement “squashed.” Cervantez insisted

that he was only aware of a “verbal argument” between the inmates at this

time, that Cruz told him everything was fine with his cellmate, and that Cruz

did not ask to move to a different cell. Cervantez stated that he saw no marks

on Terry or Cruz and nothing out of the ordinary during his jail security check

a few minutes after the first incident.

At about 1:30 p.m., Sergeant Brenda Hassell, Cervantez’s supervisor,

relieved Cervantez for his lunch break, at which time Cervantez did not

report any problems to her. Cervantez returned from lunch around 2:00 p.m.

and later performed a jail security check, during which he apparently did not

look into Cruz and Terry’s cell or note any disturbance.

Cruz testified that around the time Cervantez performed the security

check, as Cruz was packing his belongings in preparation for a move, Terry

attacked him by throwing hot water at him, cutting him with a “homemade

shank,” and beating him. During that altercation, which lasted about fifteen

minutes, Cervantez told the inmates through an intercom to stop

“horseplaying,” but he never went to the cell. Cervantez testified that

though the inmates occasionally were loud, he never knew there was a

“fight.” He could not recall if he used the intercom once or twice. Cervantez

testified he did not go to Cell 219 at the time because he was watching other

inmates cleaning the dayroom and did not want to turn his attention away

from them while they had cleaning supplies that could be used as weapons.

Surveillance footage shows inmates cleaning within the cell block at the time.

3

Case: 22-10483 Document: 115-1 Page: 4 Date Filed: 03/20/2024

No. 22-10483

Cervantez eventually called another officer, Corporal Charles

Hoffman, to break up the fight between Cruz and Terry. Cruz was sent to

receive medical treatment for his injuries, which included cuts to his neck,

head, and body. Terry sustained a cut lip. Hassell later noticed large

amounts of blood in Cruz and Terry’s cell. She asked Cervantez if anything

had happened between Cruz and Terry earlier in the day, and Cervantez

responded that “there was nothing out of the ordinary and nothing he could

think of.”

The LCDC initiated a disciplinary investigation into the inmates’

altercations, finding Cruz to have engaged in fighting. Cruz revealed that he

had been attacked by Terry. However, Cruz admitted that he did not tell

Cervantez that he and Terry had gotten into a fight during the noon

altercation.

The Lubbock County’s Sheriff’s Office (LCSO) also initiated an

investigation into Cervantez’s actions. The LCSO investigation culminated

in a disciplinary sanction (the Disciplinary Notice) that concluded that

Cervantez’s conduct constituted both “unsatisfactory performance” in

violation of § 100.37 of the LCSO’s General Orders and “dereliction of

duty” in violation of § 100.21 of the LCDC Policies and Procedures.

The Disciplinary Notice includes the following “Synopsis of Incident

and Violations”:

On 6/13/2015 Officer Cervantez was assigned to work as the

Pod Officer in 1D. At approximately 1210 Officer Cervantez

heard a disturbance in Cell 219 and observed several inmates

gathering at the door of the cell peering inside. As Officer

Cervantez watched, five inmates gathered at the door of Cell

219 and were looking intently into the cell. Officer Cervantez

used the intercom cell page to tell the inmates in Cell 219 to

calm down. Officer Cervantez did not go to the cell to see what

was happening. Officer Cervantez opened the cell door by

4

Case: 22-10483 Document: 115-1 Page: 5 Date Filed: 03/20/2024

No. 22-10483

utilizing the touch screen at his officer station to allow the

inmates to exit the cell.

At approximately 1450 the same two inmates were again in Cell

219. Officer Cervantez heard a commotion coming from the

cell. Officer Cervantez again failed to go to the cell to

investigate the disturbance. Officer Cervantez used the

intercom cell page to tell the inmates to settle down. When the

inmates refused to comply, Officer Cervantez still did not go to

the cell to investigate. Instead, he stayed at the officer station

and called another officer who was not in the pod to come in

and look into the situation.

The “Supervisor Comments” 2 in the Disciplinary Notice conclude that:

Officer Cervantez failed to take appropriate action to

investigate a disturbance between two inmates. Officer

Cervantez observed and heard things which should have

caused him to believe there was a reasonable chance the

inmates were involved in or could potentially be involved in a

physical altercation. By not taking action Officer Cervantez

contributed to a situation where physical harm came to both

inmates.

B.

In January 2016, Cruz filed this action against Cervantez and LCDC,

asserting various § 1983 claims. In January 2017, the district court dismissed

Cruz’s claims against LCDC. The court did not dismiss Cruz’s claim against

Cervantez for failing to protect him from harm, concluding that claim

survived preliminary screening, and instead ordered Cervantez to be served

and answer the complaint. The district court later granted summary

_____________________

2

The Disciplinary Notice notes that Hassell and a Lieutenant Flud were

Cervantez’s supervisors. The record is unclear, however, on who wrote the Disciplinary

Notice, and it does not appear Hassell signed the Disciplinary Notice.

5

Case: 22-10483 Document: 115-1 Page: 6 Date Filed: 03/20/2024

No. 22-10483

judgment in favor of Cervantez. Cruz v. Cervantez, No. 5:16-CV-004, 2018

WL 10151949 (N.D. Tex. Jan. 30, 2018). This court reversed and remanded,

finding that the video surveillance and Cruz’s averments that he told

Cervantez he feared Terry and requested to move cells “create[d] a fact issue

as to whether Cervantez knew that Cruz’s cellmate posed an excessive risk

of harm to Cruz and disregarded that risk.” Cruz v. Cervantez, 784 F. App’x

888, 890 (5th Cir. 2019). On remand, the district court appointed counsel

for Cruz, and the case proceeded to trial in May 2022.

Before trial, Cervantez filed a motion in limine to exclude “[a]ny

comments, testimony, or evidence that [Cervantez] was disciplined for

anything related to [the incidents] involving [Cruz] or that he violated

policies of the [LCSO] or the [LCDC] . . . .” In his motion in limine,

Cervantez argued that the Disciplinary Notice related to “negligent conduct

of [Cervantez], which might also be described as ‘inept, erroneous, or

ineffective,’ things which the Fifth Circuit has found to be incapable of

amounting to deliberate indifference.” Cervantez also argued that the

“disciplinary action related to two separate incidents that occurred in the pod,

and did not relate to an investigation into whether [Cervantez] failed to

protect [Cruz] . . . .” Cervantez contended that such evidence would force

him to introduce evidence to counter the Disciplinary Notice even though

the evidence would be of “limited relevance to a deliberate indifference

issue.” The court reserved decision until trial on whether to admit the

Disciplinary Notice.

During direct examination of Hassell, Cruz’s counsel sought to enter

the Disciplinary Notice and the “determination of [Cervantez’s] dereliction

of duty,” arguing:

[W]e believe there’s been enough testimony at this point to

show that not only were the actions of Mr. Cervantez not

merely negligent as they said is the reason to keep it out, but

6

Case: 22-10483 Document: 115-1 Page: 7 Date Filed: 03/20/2024

No. 22-10483

that the jury could find that it was deliberate indifference based

on the other actions that were not taken by Mr. Cervantez on

the date of the incidents in question.

The district court denied the request, stating that “[w]e’re not going down

that road . . . [;] the probative value is outweighed by unfair prejudice,

confusing to the jury. And I just don’t think we need to get into that . . . .”

Regardless, Hassell was critical of Cervantez’s actions. She testified

that based on her review of the video footage, Cervantez conducted a jail

security check shortly after the noon altercation, but “[n]ever even look[ed]

into the cell” where Cruz and Terry had just fought. Reviewing the video

during her trial testimony, Hassell and Cruz’s counsel had the following

exchange about Cervantez’s jail security check:

[Counsel]: Officer Cervantez has testified that you could kind

of turn your head and look and see what’s going on in the cell.

Is that how you’re supposed to do a jail security check?

[Hassell]: No.

[Counsel]: Is that how you would train an officer to do a jail

security check?

[Hassell]: No.

[Counsel]: How would you train an officer to do a jail security

check?

[Hassell]: You go and you have to look in all the cells, okay?

Hassell also offered her thoughts on the cell block environment at the time of

the noon altercation. She testified that “[u]sually when other inmates gather

around the cells, there’s something going on or they’re changing commissary

or something”:

[Counsel]: . . . . So something is up when all the inmates are

gathered around a cell. Is that fair?

7

Case: 22-10483 Document: 115-1 Page: 8 Date Filed: 03/20/2024

No. 22-10483

[Hassell]: Yes.

[Counsel]: Okay. If you’re a pod officer and you see all the

inmates gathered around a cell, what do you do?

[Hassell]: Tell them to get away from there.

[Counsel]: And if they keep going back multiple times, what

do you do?

[Hassell]: Go and check.

Though she could not specifically tell what was occurring in Cell 219 based

on the video footage, Hassell stated that the disturbance would lead a

“reasonable officer to say, ‘I need to check on [the commotion].’” Hassell

testified that Cervantez again failed to look into Cruz and Terry’s cell during

his jail security check around the 2:00 p.m. altercation. However, there was

also testimony that Hassell herself conducted a jail security check after the

noon incident, but like Cervantez, noticed nothing out of the ordinary.

After both the 2:00 p.m. altercation and Cervantez’s subsequent call

to Hoffman, Hassell inspected Cell 219. She wrote in her report, and testified

at trial, that she “informed Officer Cervantez there was too much blood in

the cell for the fight . . . to have just happened[,] and some of the blood was

already dry.” 3 Hassell stated that Cervantez did not report any incident to

her because if he had, she would have written about it in her report. She

agreed that whether there “had been a disagreement, an altercation, a fight,

an argument, anything like that in [Cell] 219” was “something as a supervisor

[she] would expect an officer to tell [her].” And she testified that

Cervantez’s reports describing the incidents were poorly written because of

_____________________

3

Hassell’s report is recorded as Defendant’s Exhibit 21. At trial, however, Cruz’s

counsel admitted it as “Plaintiff’s Exhibit 29.” The record does not show a “Plaintiff’s

Exhibit 29,” and a review of the exhibits indicates no other report from Hassell that would

be comparable.

8

Case: 22-10483 Document: 115-1 Page: 9 Date Filed: 03/20/2024

No. 22-10483

the lack of details, even though “a class in report writing” was offered in

“jailer school.”

Hassell opined that Cervantez did not act as a “reasonable officer,”

that the noon altercation should have been reported to her when she relieved

Cervantez at lunch because it was “something of significance that [she]

would have wanted to know,” and that both incidents should have been

reported to Hoffman so he would be aware of the situation and how the

incidents “could affect the safety and security of both Mr. Terry and Mr.

Cruz.” However, Hassell conceded that she could not “tell the jury that

Officer Cervantez knew that the inmates were fighting on the day of the

incident,” or that Cervantez “knew and disregarded a substantial risk of

harm to the Plaintiff.” Consistent with Hassell’s caveats, Cervantez offered

as defense expert former Travis County sheriff Margo Frasier, who testified

that under “the totality of the circumstances, there is no way that [she] could

say no reasonable officer would have acted like Officer Cervantez.” Frasier

concluded that Cervantez acted in a manner that a reasonable officer could

have acted.

The jury returned a verdict finding Cervantez violated Cruz’s

“constitutional rights by being deliberately indifferent in failing to protect

him from inmate Spencer Terry on June 13, 2015.” But the jury nonetheless

found Cervantez was entitled to qualified immunity because “a reasonable

officer could have believed that [Cruz] was not in unreasonable

danger . . . and that [Cervantez’s] decision not to move [Cruz] was lawful in

light of clearly established law and the information Defendant Cervantez

possessed.” The court accordingly dismissed Cruz’s claims. Cruz, by now

9

Case: 22-10483 Document: 115-1 Page: 10 Date Filed: 03/20/2024

No. 22-10483

pro se, timely filed various motions asserting multiple errors, 4 which the

district court denied. This appeal followed.

II.

Most of the issues Cruz raises distill to ineffective assistance of

counsel claims, which merit little mention. 5 The crux of this appeal is

whether the district court erred by excluding evidence of the investigation

into Cervantez’s actions, particularly the Disciplinary Notice, and whether

any error substantially affected Cruz’s rights. For the following reasons,

even if the district court abused its discretion in excluding the evidence, Cruz

fails to show the error substantially affected his rights because it did not

materially affect the jury’s verdict that Cervantez was entitled to qualified

immunity. 6

_____________________

4

For instance, Cruz moved for a new trial, which the district court denied. He also

moved for “Requesting Courts (sic) Ruling,” and filed a “Declaration of Inmate Filing.”

5

Cruz lodges various criticisms of his appointed counsel best summarized as

disagreements between Cruz and counsel regarding the conduct of trial. But civil litigants

are “accountable for the acts and omissions of their attorneys.” Pioneer Inv. Servs. Co. v.

Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 397 (1993). Cruz also asserts that the district

court evinced bias against him in stating that “our jury trial system in this country, it’s the

best system in the world,” as the court thanked jurors for their service after the jury

rendered its verdict. Because Cruz fails to explain how the statement shows bias, this issue

lacks merit.

6

Our dissenting colleague raises another issue, arguing that the district court erred

by “mistakenly inject[ing] an ‘objectively unreasonable’ element into the clearly-

established-law prong of the qualified immunity analysis” and “submitting to the jury the

question of [] objective reasonableness.” Post, at 1. But Cruz did not object to the jury

instructions in the district court, and he nowhere broaches this issue on appeal. See Yohey

v. Collins, 985 F.2d 222, 225 (5th Cir. 1993) (“Although we liberally construe the briefs of

pro se appellants, we also require that arguments must be briefed to be preserved.” (quoting

Price v. Digital Equip. Corp., 846 F.2d 1026, 1028 (5th Cir. 1988)); cf. United States v.

Sineneng-Smith, 590 U.S. —, —, 140 S. Ct. 1575, 1579 (2020) (Courts “do not, or should

not, sally forth each day looking for wrongs to right.” (quoting United States v. Samuels,

808 F.2d 1298, 1301 (8th Cir. 1987)). Even if the issue were properly before us, it fails on

10

Case: 22-10483 Document: 115-1 Page: 11 Date Filed: 03/20/2024

No. 22-10483

A.

Cruz alleged that Cervantez violated his Fourteenth Amendment

rights by acting with “deliberate indifference.” 7 See Hare v. City of Corinth,

74 F.3d 633, 643 (5th Cir. 1996) (en banc) (citing Farmer v. Brennan, 511 U.S.

825 (1994)). “Deliberate indifference is an extremely high standard to

meet,” and a “prison official displays deliberate indifference only if he

(1) knows that inmates face a substantial risk of serious bodily harm and

(2) disregards that risk by failing to take reasonable measures to abate it.”

Arenas v. Calhoun, 922 F.3d 616, 620 (5th Cir. 2019) (internal citations and

quotations omitted).

In § 1983 actions like this one, defendants may also raise the defense

of qualified immunity. Club Retro, L.L.C. v. Hilton, 568 F.3d 181, 194 (5th

Cir. 2009). Federal courts conduct a two-part inquiry to determine whether

a defendant is entitled to qualified immunity. First, the court asks whether

the “alleged conduct has violated a federal right” (here, acting with

deliberate indifference in violation of the Due Process Clause), and second,

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

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

_____________________

plain error review: The district court’s qualified immunity instruction was “precisely and

almost verbatim stated according to the Fifth Circuit Pattern Jury Instruction[] . . . 10.3.”

Mason v. Faul, 929 F.3d 762, 764–65 (5th Cir. 2019). Because “[t]he pattern

instruction[] . . . represent[s] an admirable summary based on Supreme Court and Fifth

Circuit precedent of the elements of a plaintiff’s claim[,] . . . [w]e find no error in the

court’s use of the pattern charge[],” id. (collecting cases), much less any “clear or

obvious” error as required on plain error review, United States v. Andaverde-Tinoco, 741

F.3d 509, 516 (5th Cir. 2013).

7

As a pretrial detainee at the time of the incidents, Cruz’s constitutional claims

arise under the Due Process Clause of the Fourteenth Amendment rather than the Eighth

Amendment. See Hare v. City of Corinth, 74 F.3d 633, 639–43 (5th Cir. 1996) (en banc).

11

Case: 22-10483 Document: 115-1 Page: 12 Date Filed: 03/20/2024

No. 22-10483

his [] conduct.” Cole v. Carson, 935 F.3d 444, 451 (5th Cir. 2019) (en banc)

(internal quotation marks and citation omitted).

As for the second prong, “qualified immunity shields officials from

civil liability so long as their conduct does not violate clearly established

statutory or constitutional rights of which a reasonable person would have

known.” Mullenix v. Luna, 577 U.S. 7, 11 (2015) (internal quotation marks

and citation omitted). For a right to be clearly established it must be

“sufficiently clear that every reasonable official would have understood that

what he is doing violates that right.” Est. of Bonilla v. Orange County, 982

F.3d 298, 306 (5th Cir. 2020). Though this inquiry 8 is typically a question of

law for the court, and not one within the province of the jury, “in certain

circumstances where there remain disputed issues of material fact relative to

immunity, the jury, properly instructed, may decide the question.” Tucker

v. City of Shreveport, 998 F.3d 165, 172 (5th Cir. 2021) (internal citations and

quotations omitted); see Fifth Circuit Pattern Jury

Instruction (Civil) 10.3 (2020) (instructing that “[q]ualified

immunity applies if a reasonable [officer] could have believed that [his

actions] [were] lawful in light of clearly established law and the information

[the officer] possessed”).

Here, the jury found that Cervantez’s actions met the high standard

for deliberate indifference, and thus constituted a constitutional violation.

This meets prong one of the qualified immunity test. But Cruz’s case faltered

_____________________

8

We agree with Judge Dennis that this court’s precedent on qualified

immunity at times has imprecisely discussed “objective reasonableness” as though it were

a distinct consideration in analyzing the second prong of the qualified immunity analysis.

Post, at 2; see Parker v. LeBlanc, 73 F.4th 400, 406 (5th Cir. 2023); Baker v. Coburn, 68 F.4th

240, 251 n.10 (5th Cir. 2023). It is not; “[t]hat quoted standard is a ‘vestige of older caselaw

that predates the Supreme Court’s current test.’” Jimerson v. Lewis, — F.4th —, —, 2024

WL 640247, at *3–4 (5th Cir. 2024) (quoting Parker, 73 F.4th at 406 n.1).

12

Case: 22-10483 Document: 115-1 Page: 13 Date Filed: 03/20/2024

No. 22-10483

on prong two, as the jury found that “a reasonable officer could have believed

that [Cruz] was not in unreasonable danger.” We thus focus our analysis on

whether excluding the Disciplinary Notice from evidence affected the jury’s

verdict as to that latter finding.

B.

“We review the . . . exclusion of evidence for abuse of discretion.”

Baisden v. I’m Ready Prods., Inc., 693 F.3d 491, 508 (5th Cir. 2012) (citing

Tompkins v. Cyr, 202 F.3d 770, 779 (5th Cir. 2000)). However, “[e]rroneous

evidentiary rulings by the trial court constitute reversible error only when

those rulings have affected a party’s substantial rights.” Kelly v. Boeing

Petroleum Servs., Inc., 61 F.3d 350, 361 (5th Cir. 1995) (citing Fed. R. Evid.

103). “If the court is sure, after reviewing the entire record, that the error did

not influence the jury or had but a very slight effect on its verdict,” then a

party’s substantial rights have not been affected. Id. (emphasis added)

(internal quotations and citations omitted). The party asserting error bears

the burden of proving he was prejudiced by the exclusion of the evidence.

E.g., Ratliff v. Aransas County, 948 F.3d 281, 286 (5th Cir. 2020); Moench v.

Marquette Transp. Co. Gulf-Inland, LLC, 838 F.3d 586, 594 (5th Cir. 2016).

1.

The district court excluded the Disciplinary Notice because: (1) its

risk of “unfair prejudice” outweighed its probative value, and (2) it could

have potentially confused the jury. See Fed. R. Evid. 403.

“Unfair prejudice” as used in Rule 403 does not encompass

testimony that is merely adverse to the opposing party. Virtually all evidence

is prejudicial to one party or another; otherwise, it would likely not be

relevant at all. The prejudice must be “unfair” to implicate Rule 403, and

that prejudice must “substantially outweigh” the evidence’s probative value.

Id.; Brazos River Auth. v. GE Ionics, Inc., 469 F.3d 416, 427 (5th Cir. 2006)

13

Case: 22-10483 Document: 115-1 Page: 14 Date Filed: 03/20/2024

No. 22-10483

(quoting Dollar v. Long Mfg., N.C., Inc., 561 F.2d 613, 618 (5th Cir. 1977)).

The Disciplinary Notice is certainly prejudicial to Cervantez, as it is evidence

that his “unsatisfactory performance” was in derogation of LCDC policies

and procedures. But how it would be unfair to Cervantez is unclear, and it is

likewise questionable whether any unfair prejudice substantially outweighs

the evidence’s probative value. “[F]ail[ure] to follow departmental policy

makes [] actions more questionable, because it is questionable whether it is

objectively unreasonable to violate such a departmental rule.” Rice v.

ReliaStar Life Ins. Co., 770 F.3d 1122, 1133 (5th Cir. 2014). Thus, the district

court likely erred in excluding the Disciplinary Notice on this ground.

It is also unclear that this evidence would have engendered such

confusion as to run afoul of Rule 403. As Cervantez contends, his violations

of LCSO and LCDC policies and procedures and the ultimate conclusions in

the Disciplinary Notice are distinct from the qualified immunity findings the

jury was required to make during trial. But any resulting confusion could

have been ameliorated with limiting instructions to the jury. So again, the

district court likely abused its discretion in excluding the evidence on this

basis. Ultimately, though, as we next explain, the court’s excluding the

Disciplinary Notice does not rise to reversible error because it had little, if

any, effect on the jury’s finding that Cervantez was entitled to qualified

immunity.

2.

A review of the entire record shows that “the error did not influence

the jury or had but a very slight effect on its verdict,” Kelly, 61 F.3d at 361,

specifically its finding that Cervantez’s “decision not to move [Cruz] was

lawful in light of clearly established law and the information Defendant

Cervantez possessed.” Thus, Cruz’s substantial rights were not affected by

14

Case: 22-10483 Document: 115-1 Page: 15 Date Filed: 03/20/2024

No. 22-10483

the district court’s exclusion of the evidence. At a minimum, Cruz fails to

meet his burden to show otherwise.

First, Cruz did not offer the Disciplinary Notice to prove prong two

of the qualified immunity test. In other words, he did not argue that it was

probative of whether the law undergirding his claims was clearly established,

or more specifically, whether every reasonable officer would have known that

Cervantez’s actions violated the law. He offered it to substantiate

Cervantez’s deliberate indifference (i.e., to show prong one): During trial,

Cruz argued that the evidence showed Cervantez was “not merely negligent

as [Cervantez] said is the reason to keep it out, but that the jury could find

that it was deliberate indifference based on the other actions that were not

taken by Mr. Cervantez . . . .” Recall that the jury found for Cruz on this

point, without the Disciplinary Notice in evidence.

Next, the Disciplinary Notice is materially duplicative of Hassell’s

trial testimony, such that admitting it would have added very little. If

anything, Hassell’s testimony was more detailed than the Disciplinary

Notice. Hassell testified that inmates “at least four times” looked into Cell

219 where the fighting occurred and rather than checking the cell, Cervantez

called Hoffman to do so. Hassell described multiple ways in which Cervantez

did not act as a reasonable officer, something the Disciplinary Notice never

directly addresses. And narrating the surveillance footage, Hassell agreed

that there were “a lot of things going on [in the cell] that could leave a

reasonable officer to say, ‘I need to check on it.’” This too went

unmentioned in the Disciplinary Notice.

Hassell also testified that Cervantez’s reports regarding the incidents

were unsatisfactory, despite the jail offering “a class in report writing in jailer

school.” She then mentioned specific deficiencies in his reports. And, more

directly to the issue of qualified immunity, Hassell agreed that “[b]ased on

15

Case: 22-10483 Document: 115-1 Page: 16 Date Filed: 03/20/2024

No. 22-10483

everything that [she] did in [her] investigation, based on the video and based

on everything” that she discussed with counsel at trial, “Officer Cervantez

[did not] conduct[] himself as a reasonable officer in doing his jail security

checks.” The Disciplinary Notice would have added nothing of substance to

Hassell’s testimony, other than that LCSO concluded, applying an

indeterminate standard, 9 that Cervantez violated LCSO and LCDC policies

and procedures and was disciplined. Cf. Rice, 770 F.3d at 1133 (“[O]fficials

sued for constitutional violations do not lose their qualified immunity merely

because their conduct violates some statutory or administrative provision.”)

(quoting Davis v. Scherer, 468 U.S. 183, 194 (1984)); see Beltran v. City of El

Paso, 367 F.3d 299, 308 (5th Cir. 2004) (same).

On the other side of the ledger, ample evidence supported the jury’s

conclusion that “a reasonable officer could have believed that [Cruz] was not

in unreasonable danger,” such that Cervantez’s actions were “lawful in light

of clearly established law and the information [he] possessed.” Cruz stated

during the LCDC investigation into his and Terry’s conduct that he never

told Cervantez about the first altercation, but he changed his story on the

stand. Hassell testified that she could not determine whether Cervantez

“knew and disregarded a substantial risk of harm to the Plaintiff.” That is

consistent with Cervantez’s expert Frasier’s testimony that under “the

totality of the circumstances, there [was] no way that [she] could say no

reasonable officer would have acted like Officer Cervantez.” And the jury

viewed the surveillance footage from that day, in which they could see what

was occurring and how Cervantez responded. Nothing in the Disciplinary

_____________________

9

The Disciplinary Notice references both “sufficient competency” and the

“highest standard of efficiency.” While this ambiguity goes perhaps more to the bases on

which the district court relied to exclude the Disciplinary Notice under Rule 403, the fact

that the standard underpinning the investigation’s conclusions is unclear also cabins the

probative value of the evidence as to Cervantez’s qualified immunity defense.

16

Case: 22-10483 Document: 115-1 Page: 17 Date Filed: 03/20/2024

No. 22-10483

Notice counters this record, buttressing our confidence that any “error did

not influence the jury or had but a very slight effect on its verdict.” Kelly, 61

F.3d at 361. Thus, Cruz’s substantial rights were not affected; at the very

least, Cruz makes no showing to the contrary. Id.; see Sims v. ANR Freight

Sys., Inc., 77 F.3d 846, 849–50 (5th Cir. 1996) (declining to remand when

there was “no reasonable possibility that the outcome would be different if

the case were re-tried”).

III.

Even if the district court abused its discretion in excluding evidence

related to Cervantez’s disciplinary investigation, which culminated in the

Disciplinary Notice he was issued, Cruz fails to show that any error

prejudiced his substantial rights and was thus reversible. The other issues

raised by Cruz in this appeal lack merit. 10 Accordingly, the district court’s

evidentiary ruling and its judgment dismissing Cruz’s claims based on the

jury’s verdict are AFFIRMED.

_____________________

10

For the same reasons as discussed above the line, Cruz’s pending motion to

“take judicial notice of the fact that [the] district court once again err[ed]” is DENIED.

17

Case: 22-10483 Document: 115-1 Page: 18 Date Filed: 03/20/2024

No. 22-10483

James L. Dennis, Circuit Judge, concurring in part and dissenting in part:

I concur in the majority opinion’s rejection of much of Cruz’s appeal,

including its finding that the district court’s evidentiary exclusion of the

disciplinary notice—though in error—did not impact Cruz’s substantial

rights. I write separately, however, to highlight how the district court, by

submitting to the jury the question of the objective reasonableness of

Cervantez’s behavior, mistakenly injected an “objectively unreasonable”

element into the clearly-established-law prong of the qualified immunity

analysis. See Parker v. LeBlanc, 73 F.4th 400, 406 n.1 (5th Cir. 2023) (noting

that the separate “objective unreasonable” prong is a “vestige of older

caselaw that predates the Supreme Court’s current test . . .”); see also Baker

v. Coburn, 68 F.4th 240, 251 n.10 (5th Cir. 2023) (refusing to add “a

standalone ‘objective reasonableness’ element to the Supreme Court’s two-

pronged test for qualified immunity”).

Though Cruz failed to raise this issue before the district court, the

panel should nevertheless consider the “purely legal matter” of the proper

qualified immunity standard since failure to do so would “result in a

miscarriage of justice.” Rollins v. Home Depot USA, Inc., 8 F.4th 393, 397–98

(5th Cir. 2021) (quoting Essinger v. Liberty Mut. Fire Ins. Co., 534 F.3d 450,

453 (5th Cir. 2008)). Failure to consider this issue would work a “miscarriage

of justice” since, as explained below, Cruz in fact met his burden of rebutting

Cervantez’s assertion of qualified immunity and judgment should have been

entered in his favor. See id. Moreover, Cruz—who is representing himself

pro se—raises the issue of qualified immunity in his opening brief. Pro se

briefing is entitled to liberal construction, and this court “is not limited to the

particular legal theories advanced by the parties, but rather retains the

independent power to identify and apply the proper construction of

governing law.” Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90, 99 (1991);

Johnson v. Quarterman, 479 F.3d 358, 359 (5th Cir. 2007) (“Briefs by pro se

18

Case: 22-10483 Document: 115-1 Page: 19 Date Filed: 03/20/2024

No. 22-10483

litigants are afforded liberal construction[.]”) (internal citation removed).

Because the panel should consider the purely legal question of the proper

qualified immunity standard, I write briefly to express my concern that

plaintiffs such as Cruz are being held to a higher burden than required by our

caselaw to overcome a defendant’s assertion of qualified immunity.

As we have recently clarified, “there is no standalone ‘objective

unreasonableness’ element to the Supreme Court’s two-pronged test for

qualified immunity.” Hicks v. LeBlanc, 81 F.4th 497, 503 n.14 (5th Cir. 2023)

(internal quotation omitted). To overcome Cervantez’s assertion of qualified

immunity at trial, then, Cruz only had to show that: (1) Cervantez “violated

a statutory or constitutional right; and (2) the right was ‘clearly established’

at the time of the challenged conduct.” 1 Ashcroft v. al-Kidd, 563 U.S. 731, 735

(2011) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). The record

reflects that Cruz satisfied both prongs of the correct qualified immunity test.

First, the jury found that Cervantez violated Cruz’s Fourteenth Amendment

rights by acting with deliberate indifference. Second, the district court

announced to the jury its legal conclusion that, “[i]n this case, the clearly

established law was that an inmate is entitled to protection from violence at

the hands of another inmate[.]” Because Cruz satisfied both prongs of the

qualified immunity test, judgment should have been entered in his favor.

_____________________

1

To the extent the non-binding Fifth Circuit Pattern Jury Instructions add an

“objective unreasonableness” element into the clearly-established-law prong of the

qualified immunity analysis, they do not accurately reflect the law. Obviously, then, Mason

v. Faul, 929 F.3d 762, 766 (5th Cir. 2019), is inapposite because, in that case, the at-issue

pattern jury instructions accurately reflected “Supreme Court and Fifth Circuit

precedent.” Ante, at 12 n.6 (panel majority wrongly suggesting that Mason stands for the

proposition that a challenge to jury charges always fails plain-error review when the

instructions are borrowed from the pattern jury instructions).

19

Case: 22-10483 Document: 115-1 Page: 20 Date Filed: 03/20/2024

No. 22-10483

The district court’s improper submission of the nonexistent question

of objective reasonableness to the jury is reviewed for plain error. Sec. & Exch.

Comm’n v. Life Partners Holdings, Inc., 854 F.3d 765, 783 (5th Cir. 2017)

(“We review unpreserved challenges in civil cases for plain error.”). Under

this standard, which is identical to plain-error review in the criminal context,

the court “must determine (1) if there was error, (2) if that error was plain,

(3) if the error affects substantial rights, and (4) whether allowing that error

to stand seriously affects the fairness, integrity, or public reputation of

judicial proceedings.” Crawford v. Falcon Drilling Co., Inc., 131 F.3d 1120,

1124 (5th Cir. 1997). Initially, the district court’s error here was plain because

it is “clear” or “obvious” that juries should not be made to consider

nonexistent questions of law. See id. at 1125 (“‘Plain’ is synonymous with

‘clear’ or, equivalently, ‘obvious.’”) (quoting United States v. Olano, 507

U.S. 725, 734 (1993)).

Further, the district court’s error undoubtedly affected Cruz’s

substantial rights and impacts the “fairness, integrity or public reputation of

judicial proceedings.” Olano, 507 U.S. at 736 (“The Court of Appeals should

correct a plain forfeited error affecting substantial rights if the error

‘seriously affect[s] the fairness, integrity or public reputation of judicial

proceedings.’”) (quoting United States v. Atkinson, 297 U.S. 157, 160 (1936)).

Not only did the injection of the objective reasonableness question hold Cruz

to a higher standard than that required by the Supreme Court’s qualified

immunity test, see al-Kidd, 563 U.S. at 735, but it also impacted Cruz’s

entitlement to relief since, as explained above, Cruz otherwise overcame

Cervantez’s assertion of qualified immunity at trial, see Olano, 61 F.3d at 361. 2

_____________________

2

The panel majority quips that correcting this purely legal error in an appeal

brought by a pro se litigant runs afoul of the precept that we “do not, or should not, sally

forth each day looking for wrongs to right.” Ante, at 11 n.6 (quoting United States v.

20

Case: 22-10483 Document: 115-1 Page: 21 Date Filed: 03/20/2024

No. 22-10483

The panel should reverse and remand to the district court with

instructions to enter judgment in favor of Cruz and commence proceedings

to calculate Cruz’s damages. I respectfully dissent.

_____________________

Sineneng-Smith, 140 S. Ct. 1575, 1579 (2020)). That quote is plucked from a case where

both parties were represented by counsel and, therefore, cannot be read to relieve courts of

their responsibility to take care that pro se litigants’ briefs are liberally construed. Yohey v.

Collins, 985 F.2d 222, 225 (5th Cir. 1993).

21