Jason Medina v. Amadeo Ortiz ( 2015 )


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  •      Case: 14-51347      Document: 00513166713         Page: 1    Date Filed: 08/24/2015
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    No. 14-51347                         United States Court of Appeals
    Summary Calendar                                Fifth Circuit
    FILED
    August 24, 2015
    JASON LEE MEDINA,                                                          Lyle W. Cayce
    Clerk
    Plaintiff - Appellant
    v.
    AMADEO ORTIZ, Bexar County Sheriff, In His Official Capacity; DEPUTY
    ANDRES BRAVO, In His Official and Individual Capacity; DEPUTY NERI,
    In His Official and Individual Capacity,
    Defendants - Appellees
    Appeal from the United States District Court
    for the Western District of Texas
    USDC No. 5:12-CV-1230
    Before DAVIS, CLEMENT, and COSTA, Circuit Judges.
    PER CURIAM:*
    Jason Medina filed this civil rights lawsuit against a sheriff and two
    deputies alleging excessive force and denial of medical care. The Defendants
    obtained summary judgment on all claims except those for excessive force
    brought against the deputies. Medina filed an interlocutory appeal of that
    * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH
    CIR. R. 47.5.4.
    Case: 14-51347    Document: 00513166713     Page: 2   Date Filed: 08/24/2015
    No. 14-51347
    ruling, which we dismissed for lack of jurisdiction. When Medina failed to
    notify the district court about the dismissal of the appeal or otherwise pursue
    the case for five months, the magistrate judge dismissed the remaining claims
    under Federal Rule of Civil Procedure 41(b) for failure to prosecute. Finding
    that Medina waived his challenge to the Rule 41(b) ruling and no error in the
    earlier summary judgment ruling, we affirm.
    I
    The alleged constitutional violations stem from an incident that took
    place in the booking area of the Bexar County Adult Detention Center on
    January 19, 2011.     Medina alleges that a fight broke out among several
    inmates. Sheriff deputies intervened and Medina was forced to the ground so
    that he could be handcuffed. According to Medina, he did not resist and was
    instead lying face down with his hands behind his back and his legs shackled.
    Medina further states that, while trying to handcuff him, deputies Andrew
    Bravo and Juan Neri kneed him in the right shoulder, twisted his left arm, and
    kicked him in the head. Deputy Bravo then pulled Medina off the ground and
    slammed him against a wall. Medina was escorted to the jail infirmary where
    a technician x-rayed his shoulder and allegedly told him he would be taken to
    the hospital to treat a broken shoulder and other injuries. But Medina claims
    he was taken back to his cell, and despite filing several grievances about the
    incident and his medical needs over the following weeks, he was not taken to
    the hospital for four months. Medina eventually was taken to the hospital
    where doctors diagnosed him with a shoulder blade fracture, head swelling,
    and possible nerve damage. Medina also contends that he suffered severe
    mental distress as a result of the incident.
    Medina filed this Section 1983 lawsuit naming deputies Bravo and Neri
    in their individual and official capacities. He also brought official capacity
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    claims against the sheriff of Bexar County, Amadeo Ortiz, for failing to train
    or supervise the officers and for the subsequent denial of medical care.
    The Defendants moved for summary judgment on all claims. Bravo and
    Neri asserted qualified immunity as to the excessive force claims, and also
    denied any involvement in Medina’s subsequent medical care that could give
    rise to an Eighth Amendment violation. As to the official capacity claims, the
    Defendants argued that Medina failed to provide any evidence that a policy or
    custom led to the alleged constitutional violations. The district court granted
    summary judgment on all the official capacity claims and all claims for
    violation of the Eighth Amendment. But the district court found that fact
    issues existed on the excessive force claims against Bravo and Neri, such as
    whether and to what extent Medina resisted being handcuffed. This order was
    entered on March 4, 2014.
    This seemingly routine Section 1983 action then took a number of
    unusual, and for Medina unfortunate, turns.           On April 1, 2014, Medina’s
    counsel appealed the district court’s dismissal of the official capacity and
    Eighth Amendment claims.           The district court had not authorized this
    interlocutory appeal, nor had either deputy appealed the denial of qualified
    immunity.
    After the notice of appeal was filed, the parties consented to have the
    magistrate judge hear the case at the trial level. The magistrate judge asked
    the parties how the case should proceed during the pendency of the appeal, and
    both took the position that the case should be stayed. The magistrate judge
    agreed and entered an order staying the case on April 25, 2014, which stated
    that:
    IT IS FURTHER ORDERED that within thirty (30) calendar
    days of the Fifth Circuit’s issuance of its mandate at the
    conclusion of plaintiff’s pending appeal, the parties must file a joint
    or separate advisories to address any matters relating to the
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    resolution of the case in this Court, to include indicating whether
    the case in this Court should (a) remain administratively stayed
    and closed (pending resolution of any petition for writ of certiorari);
    (b) be scheduled for jury selection and trial (and if so, several dates
    on which the parties are available for trial); or (c) be handled in
    another way.
    Not surprisingly given the interlocutory nature of the appeal, we
    dismissed Medina’s appeal for lack of jurisdiction soon after it was filed. See
    Medina v. Ortiz, No. 14-50302 (5th Cir. June 17, 2014) (“When an action
    involves multiple claims, any decision that disposes of fewer than all the claims
    does not terminate the litigation and is not appealable unless certified under
    Federal Rule of Civil Procedure 54(b).”). The mandate was filed in the district
    court on July 3, 2014.
    For the next five months, no activity took place in the case. Then, on
    December 1, 2014, the magistrate judge entered an order dismissing the
    remaining excessive force claims under Rule 41(b) for want of prosecution,
    specifically citing Medina’s failure to comply with the court’s April 25th order.
    This resulted in entry of final judgment on all Medina’s claims.
    Medina appeals that final judgment. However, Medina’s opening brief
    does not mention the dismissal of his excessive force claims against Bravo and
    Neri for want of prosecution. Instead, Medina’s opening brief argues that a
    fact dispute exists on whether Bravo and Neri used excessive force against him,
    and also challenges the granting of summary judgment on the official capacity
    and Eighth Amendment claims. Only in his reply brief does Medina argue that
    the district court should not have dismissed the excessive force claims under
    Rule 41(b). The Defendants contend that Medina waived his right to appeal
    the dismissal for want of prosecution of his excessive force claims against
    Bravo and Neri, and that the district court properly granted summary
    judgment on his other claims.
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    II
    We first address the excessive force claims against Bravo and Neri.
    Medina argues that a material fact dispute exists on the excessive force claims.
    But the district court agreed summary judgment was not warranted on those
    claims, which were instead dismissed for want of prosecution under Rule 41(b).
    We agree with the Defendants that Medina has waived his right to
    appeal the dismissal of these excessive force claims for want of prosecution.
    “[An] appellant cannot raise new issues in a reply brief; he can only respond to
    arguments raised for the first time in the appellee’s brief.” Stephens v. C.I.T.
    Group/Equip. Fin., Inc., 
    955 F.2d 1023
    , 1026 (5th Cir. 1992). The narrow
    exceptions to this rule are rarely applied. See, e.g., United States v. Myers, 
    772 F.3d 213
    , 219 (5th Cir. 2014) (addressing a late raised issue because all parties
    conceded the district court committed plain error, the issue was of
    constitutional importance, and the error increased the defendant’s sentence by
    at least three years); United States v. Rodriguez, 
    602 F.3d 346
    , 361 (5th Cir.
    2010) (addressing a late raised issue because the issue “was addressed in the
    [appellee’s] brief”); 1 Martinez v. Mukasey, 
    519 F.3d 532
    , 545–46 (5th Cir. 2008)
    (addressing a late raised issue because it involved a question of statutory
    construction); United States v. Bonilla-Mungia, 
    422 F.3d 316
    , 319 (5th Cir.
    2005) (addressing an issue raised for the first time in supplemental briefing
    because a party waived its waiver argument). Medina does not argue any
    exceptions apply. And though we have concerns about the application of Rule
    41(b), 2 this case does not present the unique circumstances that we have
    1  Whereas the appellee in Rodriguez addressed the substantive issue in its opening
    brief, in this case the Defendants asserted only that the Rule 41(b) issue had been waived.
    
    Compare 602 F.3d at 361
    (emphasizing the absence of prejudice to the appellee because it
    had already briefed the otherwise late raised issue).
    2 There was never an “express[] determin[ation] that lesser sanctions would not
    prompt diligent prosecution” or identification of an “aggravating factor” as required by Rule
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    recognized justify addressing a late raised issue. Medina therefore waived his
    right to appeal the dismissal of his excessive force claims against Bravo and
    Neri.
    III
    That leaves Medina’s challenge to the district court’s grant of summary
    judgment, which we now have jurisdiction to review because the district court
    entered a final judgment. See Borne v. A&P Boat Rentals No. 4, Inc., 
    755 F.2d 1131
    , 1133 (5th Cir. 1985).
    Medina first argues that the Eighth Amendment claims against Bravo
    and Neri should not have been dismissed because they were deliberately
    indifferent to his need for medical care. But, as the district court found,
    Medina failed to produce any evidence that either deputy was involved in his
    medical care, or even knew about his medical condition or requests. Because
    Medina cannot establish that Bravo and Neri knew about the relevant facts or
    played any role in his medical care, he cannot show that they were deliberately
    indifferent to any medical needs. See Lee v. Rushing, 530 F. App’x 315, 318
    (5th Cir. 2013) (affirming dismissal because there were no allegations “that the
    [defendant] personally participated in [the plaintiff’s] medical care”).
    Medina next contends that a fact dispute precluded summary judgment
    on the official capacity claims against the sheriff’s office. See Hafer v. Melo,
    
    502 U.S. 21
    , 25 (1992) (holding that a suit against a public official in his official
    capacity is really a suit against the entity the official represents). Medina
    argues that the excessive force was caused by Sheriff Ortiz’s failure to train or
    41(b). E.g., Raymond v. Univ. of Houston, 275 F. App’x 448, 449–50 (5th Cir. 2008) (listing
    the few circumstances that justify a Rule 41(b) dismissal with prejudice). Even the ground
    apparently ruled on—the five month period of inactivity—may not amount to the “clear
    record of delay” needed to dismiss a case under Rule 41(b). See McNeal v. Papasan, 
    842 F.2d 787
    , 791 (5th Cir. 1988) (holding that “a few months” of inactivity is insufficient to justify
    dismissal).
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    supervise his deputies, and that the subsequent denial of medical care resulted
    from a custom of denying care to inmates who filed grievances.            Medina
    alternatively argues that Ortiz ratified the constitutional violations.
    A municipality cannot be held liable under Section 1983 without proof
    that an official policy or custom caused the constitutional violation and was
    adopted with deliberate indifference. Sanders–Burns v. City of Plano, 
    594 F.3d 366
    , 380–81 (5th Cir.2010). This generally requires the plaintiff to identify an
    official policy adopted by the municipality or a pattern of similar constitutional
    violations that indicates the existence of an informal custom or practice. Valle
    v. City of Houston, 
    613 F.3d 536
    , 542, 547 (5th Cir. 2010). A single incident
    can give rise to municipal liability only if the municipal actor who committed
    the constitutional violation “is a final policymaker.” 
    Id. at 542.
          Medina points to testimony that he characterizes as showing that Bexar
    County had a policy, custom, or practice that led to the excessive force. First,
    Medina identifies statements in the deputies’ affidavits that their actions were
    consistent with their training, and he thus infers that the deputies’ use of
    excessive force resulted from their training.     But the deputies’ account of
    events—which differs from Medina’s—clearly does not describe excessive force,
    so their affidavits cannot be read to concede that they were trained to violate
    the Constitution. Second, Medina points to statements in his own affidavit
    that a pattern of excessive force violations took place under Sheriff Ortiz. But
    that affidavit is conclusory and fails to provide any details about these
    supposed incidents. It thus does not create a fact issue on the existence of a
    policy or custom. Turner v. Baylor Richardson Med. Ctr., 
    476 F.3d 337
    , 343
    (5th Cir. 2007) (“[A] party cannot defeat summary judgment with conclusory
    allegations, unsubstantiated assertions, or ‘only a scintilla of evidence.’”
    (quoting Little v. Liquid Air Corp., 
    37 F.3d 1069
    , 1075 (5th Cir. 1994)). The
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    district court therefore correctly held that no evidence shows Bexar County
    had a policy or custom causing the deputies’ allegedly excessive force.
    The same is true with respect to the Eighth Amendment claim for the
    subsequent denial of medical care. Medina relies entirely on evidence that
    Ortiz controlled his confinement and that he filed grievances complaining
    about the incident and his pain. But nowhere does Medina identify a pattern
    of similar occurrences, and therefore he cannot establish a policy or custom of
    constitutional violations. See Burge v. St. Tammany Parish, 
    336 F.3d 363
    , 370
    (5th Cir. 2003) (holding that “isolated acts” generally cannot establish the
    existence of a custom or practice). And the “single incident exception” does not
    apply because no evidence suggests Ortiz himself was involved in the decision
    to deny Medina medical care. See 
    Valle, 613 F.3d at 542
    (holding the exception
    may apply if the violation results directly from a final policymaker’s decision).
    Finally, Medina’s ratification theory fails. Ratification exists when a
    policymaker “approve[s] a subordinate’s decision and the basis for it.” City of
    St. Louis v. Praprotnik, 
    485 U.S. 112
    , 127 (1988).        The only evidence of
    ratification Medina identifies is that Ortiz accepted the officer’s use of force
    report, refused to turn over evidence until the lawsuit was filed, and defends
    the deputies’ actions in this case. None of these allegations show that Ortiz
    approved of the use of excessive force or the denial of medical care. Peterson v.
    City of Fort Worth, 
    588 F.3d 838
    , 848 (5th Cir. 2009) (refusing to find
    ratification based on “a policymaker who defends conduct that is later shown
    to be unlawful”).
    ***
    Medina cleared what is typically the biggest hurdle in a civil rights case:
    he got past summary judgment on his excessive force claims against Bravo and
    Neri. That should have entitled him to a trial. Three decisions his counsel
    made prevented that trial from happening. First, counsel filed an interlocutory
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    appeal over which we plainly had no jurisdiction. Second, counsel neglected to
    notify the magistrate judge of the dismissal of the appeal or otherwise pursue
    the litigation once it was back in the trial court. Third, counsel failed to
    challenge on appeal the dismissal for lack of prosecution. It is unfortunate
    when a party suffers because of his counsel’s mistakes. But the decisions made
    by Medina’s counsel have placed this appeal in a posture in which the
    potentially meritorious challenge to the Rule 41(b) ruling was waived and the
    arguments that were timely asserted are unavailing.         The judgment is
    AFFIRMED.
    9