Perez v. City of Harlingen ( 1999 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-41533
Summary Calendar
AQUILINO PEREZ and Maria Conseca Perez,
Individually and as Next Friends of
Silverio Perez, Elifonsa Perez, Maria
Del Carmen Perez, Jose Perez and Maria
Guadalupe Perez,
Plaintiffs-Appellees,
versus
CITY OF HARLINGEN ET AL.,
Defendants,
CITY OF HARLINGEN; JAMES JOSEPH
SCHOEPNER, Individually and in his
official capacity as Police Chief of the
City of Harlingen Police Department;
TIMOTEO FLORES, Individually and in his
official capacity as a Peace Officer for
the City of Harlingen Police Department;
VERONICA GONZALEZ, Individually and in
her official capacity as a Jailer for
the City of Harlingen Police Department,
Defendants-Appellants.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. B-96-CV-075
--------------------
November 11, 1999
Before DAVIS, EMILIO M. GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 98-41533
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Aquilino Perez (“Perez”) and his wife Maria Conseca Perez
filed suit in a Texas state court in 1995 on behalf of themselves
and five of their children, alleging that Perez was injured
through the defendants’ negligence when he was a detainee at the
Harlingen City Jail. The Perezes later amended their petition,
invoking 42 U.S.C. § 1983 and alleging that the defendants
violated Perez’s constitutional rights. The defendants removed
the case to the district court and, in due course, filed motions
for summary judgment. Harlingen Police Chief James Joseph
Schoepner and Veronica Gonzalez, a jailer, each asserted
qualified immunity as a defense. The district court denied all
of the motions for summary judgment, and the defendants filed a
notice of appeal. Only Gonzalez and Schoepner make arguments on
appeal. Insofar as the other defendants are appealing the denial
of summary judgment, the appeal is DISMISSED as to them.
Gonzalez and Schoepner have filed a motion requesting that
two Perez children who were not named in the original complaint
be made a part of the appeal. The district court permitted the
participation of the two children in the same order that it
denied the defendants’ motions for summary judgment.
Accordingly, we view the two children as participants to the
appeal to the extent that any of the children are parties to the
litigation. The motion is DENIED as unnecessary.
In an appeal from the denial of summary judgment, we review
the record de novo. Nerren v. Livingston Police Dep’t, 86 F.3d
469, 472 (5th Cir. 1996). Summary judgment is proper when,
viewing the evidence in the light most favorable to the
No. 98-41533
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nonmovant, there is no genuine issue of material fact and the
moving party is entitled to judgment as a matter of law.
Amburgey v. Corhart Refractories Corp., 936 F.2d 805, 809 (5th
Cir. 1992); Fed. R. Civ. P. 56(c). If the moving party meets the
initial burden of establishing that there is no genuine issue,
the burden shifts to the nonmoving party to produce evidence of a
genuine issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317,
321 (1986). Because the district court gave no reasons for
denying the motions for summary judgment, we “must ‘undertake a
cumbersome review of the record to determine what facts the
district court, in the light most favorable to the nonmoving
party, likely assumed.” Coleman v. Houston Indep. Sch. Dist.,
113 F.3d 528, 532 (5th Cir. 1997) (citation omitted).
Although there is not ordinarily appellate jurisdiction to
review immediately the denial of a motion for summary judgment,
there is an exception when the motion was predicated on qualified
immunity. Mitchell v. Forsyth, 472 U.S. 511, 525, 530 (1985).
The district court’s denial is reviewable to the extent it turned
on issues of law, not fact. Id. at 528. Thus, although we lack
jurisdiction to review a district court’s determination that
there exist genuine issues of fact, we do have jurisdiction to
review a determination that the issues of fact are material.
Colston v. Barnhart, 146 F.3d 282, 284 (5th Cir.), cert. denied,
119 S. Ct. 618 (1998). We conduct a de novo review of the
district court’s conclusions about materiality. Lemoine v. New
Horizons Ranch and Ctr., Inc., 174 F.3d 629, 634 (5th Cir. 1999).
Whether a public official is qualifiedly immune depends on
No. 98-41533
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two inquiries. Harris v. Victoria Indep. Sch. Dist., 168 F.3d
216, 223 (5th Cir. 1999). First, a defendant is entitled to
qualified immunity when a plaintiff has failed to allege the
violation of a clearly established constitutional right. Id.Second, a defense of qualified immunity will succeed if the
defendant’s conduct was objectively reasonable at the time in
light of clearly established law. Id.Gonzalez concedes that she had clearly established
constitutional duties not to be deliberately indifferent to
either any physical abuse committed against Perez by another
officer in her presence or to Perez’s serious medical needs. She
insists, however, that her actions were objectively reasonable in
light of these duties.
There is evidence creating a genuine issue of material fact
that Gonzalez failed to take reasonable measures to intervene to
protect Perez from physical abuse by another officer, Timoteo
Flores. Although she argues that there is no evidence that she
was even present during any abuse, Perez testified that a man and
a woman escorted him to a cell. He testified that the woman
angrily screamed and that the male officer pushed him into a
concrete wall. This testimony was partially corroborated by
another prisoner. Gonzalez herself testified that she escorted
Perez, after he was booked, to a cell. Viewing the evidence in
the light most favorable to the plaintiffs, we hold that there is
a genuine issue of material fact as to whether Gonzalez was
present during abuse of Perez.
There is also evidence that Gonzalez was present when
No. 98-41533
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Officer Flores picked Perez off the ground and threw him into a
cell, causing him to become unconscious. Although Gonzalez’s
version of events differs from Perez’s, we note that, even under
her telling, she was present when the officer carried Perez into
a cell. There is a genuine issue of material fact regarding
whether Gonzalez was present and failed to intervene during the
time that Officer Flores allegedly harmed Perez.
Gonzalez also argues that she acted reasonably at all times,
even though she did not obtain medical help for Perez. As noted,
there is evidence that Gonzalez was present when Flores
physically abused Perez. In addition, Gonzalez herself testified
that Perez hit his head on the wall with great force. She
testified that he did not answer after he hit his head and shook
his head from left to right when asked if he was all right.
Perez testified that he was unable to move throughout the night
and called out whenever he heard a jailer walking down the
hallway. Gonzalez testified that she made checks on the
prisoners every 30 minutes through the night. In light of all
this, we hold that there is a genuine issue of material fact as
to whether Gonzalez was deliberately indifferent to Perez’s
serious medical needs.
Chief Schoepner argues that his conduct was objectively
reasonable. He concedes that Perez’s claims of inadequate
training and supervision do state possible violations of clearly
established constitutional rights. He argues, however, that none
of his actions could have been unreasonable because there had
never been any prior complaints against Gonzalez or Flores.
No. 98-41533
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A police chief can be held liable under § 1983, but a
plaintiff must show a connection between the chief’s own conduct
and any constitutional violation. Baker v. Putnal, 75 F.3d 190,
199 (5th Cir. 1996). “The plaintiff must show that: (1) the
police chief failed to supervise or train the officer, (2) a
causal connection existed between the failure to supervise or
train and the violation of the plaintiff’s rights, and (3) such
failure to supervise or train amounted to gross negligence or
deliberate indifference.” Id.Gonzalez testified that she was hired as a jailer less than
two months before the incident with Perez occurred. Her only
training consisted of a 40-hour class on jails. The class did
not include any instruction on the handling of arrestees,
improper uses of force, or on the duty to provide care to
prisoners with serious needs. She testified that she received no
training at all from the City or Chief Schoepner. She testified
that she had never attended any meetings of the jail staff. She
testified that she had never been issued and had not read any job
description.
Accordingly, there is a genuine issue whether Chief
Schoepner failed to train and supervise Gonzalez in her duties as
a jailer. If Perez’s story is proved, Gonzalez was deliberately
indifferent to the physical abuse he received and to his serious
medical needs. Because Gonzalez received no training in these
areas, it could reasonably be determined that there was a “causal
connection” between the failure to train and any constitutional
violation. Baker, 75 F.3d at 199. In addition, we believe it
No. 98-41533
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could reasonably be determined that Schoepner’s failure to train
Gonzalez “amounted to gross negligence or deliberate
indifference.” Id. See also Farmer v. Brennan, 511 U.S. 825,
847 (1994) (defining deliberate indifference as “know[ing] that
inmates face a substantial risk of serious harm and
disregard[ing] that risk by failing to take reasonable measures
to abate it”). Schoepner was not entitled to judgment as a
matter of law on this claim.
The Perezes have not alleged a similar failure to train or
supervise Officer Flores. They argue that conduct unrelated to
the use of force and documented in Flores’s personnel file
suggests that Schoepner should have more closely supervised the
officer. Even if there were some failure to train Flores in
these unrelated areas, though, the Perezes have not alleged the
required “causal connection” between Schoepner’s failure to train
in these areas and Flores’s alleged use of excessive force.
Baker, 75 F.3d at 199. Because the plaintiffs have not pointed
to evidence of a genuine issue for trial, Schoepner was entitled
to judgment as a matter of law as to this claim.
Schoepner also argues that he was entitled to qualified
immunity as to the Perezes’ claim that he implemented an
unconstitutional policy or custom of tolerating the use of
excessive force. The Perezes did not rely on any express policy.
Instead, they alleged three prior incidents that, they argue,
indicate Schoepner’s tolerance of excessive force. We have
reviewed the Perezes’ allegations, and we conclude that they have
failed to allege any “persistent, widespread practice” in the
No. 98-41533
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police department.1 Webster v. City of Houston, 735 F.2d 838,
841 (5th Cir. 1984) (en banc). One of the incidents did not
involve the use of force on an arrestee, and, in another, the
offending officer was terminated by Schoepner.
In sum, the district court properly held that Gonzalez was
not entitled to qualified immunity from the Perezes’ claims. The
court also correctly held that Chief Schoepner was not entitled
to qualified immunity from the Perezes’ claim that he failed to
properly train and supervise Gonzalez. As to these claims, there
are genuine issues of material fact, making the district court’s
denial of summary judgment unappealable. See Colston, 146 F.3d
at 284. However, we hold that the district court erred in
denying Schoepner qualified immunity from the Perezes’ claim that
he failed to train or supervise Officer Flores. Finally, the
district court erred in holding that Schoepner was not
qualifiedly immune from any claim that he implemented an
unconstitutional policy or custom of tolerating the use of
excessive force. Accordingly, we DISMISS the appeal in part,
REVERSE in part, and REMAND for further proceedings.
MOTION DENIED; DISMISSED IN PART, REVERSED IN PART, and
REMANDED.
1
As the Perezes observe, we held in Grandstaff v. City of
Borger, Tex., 767 F.2d 161, 171 (5th Cir. 1985), that
postincident conduct by a policymaker can, in an appropriate
circumstance, be evidence of the policymaker’s unlawful
preincident practice. There, “the subsequent acceptance of
dangerous recklessness by the policymaker tend[ed] to prove his
preexisting disposition and policy.” Id. This case is
distinguishable, however. Unlike Grandstaff, even if proved,
this case did not involve egregious misconduct by so many
officers that a preincident policy could reasonably be inferred
from the policymaker’s reaction to the incident itself.