Kennemer v. Parker County, Texas ( 2022 )

Case: 21-10467 Document: 00516387564 Page: 1 Date Filed: 07/08/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
July 8, 2022
No. 21-10467
Lyle W. Cayce
Summary Calendar
Clerk
John David Kennemer,
Plaintiff—Appellant,
versus
Parker County, Texas; La Salle Southwest
Corrections; Larry Fowler, Sheriff of Parker County;
Jack County, Texas; Tom Spurlock, Sheriff of Jack
County; Jay Eason; FNU Garcia, Correctional Officer;
Warden John Doe; Corporal John Doe; James Robinson;
FNU Coffee; John Does 1-7; Officer Jane Doe,
Defendants—Appellees.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:20-CV-56
Before Wiener, Dennis, and Haynes, Circuit Judges.
Per Curiam:*
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 21-10467 Document: 00516387564 Page: 2 Date Filed: 07/08/2022
No. 21-10467
Appellant John Kennemer brought the instant case, proceeding pro se
and in forma pauperis, under 42 U.S.C. § 1983. He alleges constitutional and
statutory violations promulgated by the above-captioned individuals,
municipalities, and municipal entities while Kennemer was detained at
county jails in Parker County, Texas, and Jack County, Texas. Because
Kennemer proceeded against “a governmental entity or officer or employee
of a governmental entity,” the Prison Litigation Reform Act (“PLRA”)
required the district court to review the complaint and dismiss it if it was
“frivolous, malicious, or fail[ed] to state a claim upon which relief may be
granted.” 28 U.S.C. § 1915A(a), (b)(1). Kennemer’s in forma pauperis
status also subjected him to sua sponte dismissal if his case was “frivolous or
malicious”; “fail[ed] to state a claim on which relief may be granted”; or
sought “monetary relief against a defendant who is immune from such
relief.” Id. § 1915(e)(2)(B).
Applying these standards, the district court dismissed several of
Kennemer’s claims and entered a final judgment under Federal Rule of Civil
Procedure 54(b) as to those claims such that we have jurisdiction over
Kennemer’s timely interlocutory appeal as to those claims. We conclude no
error as to this judgment.
First, as to the municipalities and municipal entities—Parker County,
Jack County, and La Salle Southwest Corrections 1—Kennemer failed to
properly allege municipal liability as required by Monell v. Department of
Social Services of New York, 436 U.S. 658 (1978). “To establish municipal
liability under § 1983, a plaintiff must show that (1) an official policy
1
Even though LaSalle is a private corporation, it is subject to the same rules as
municipalities because private prisons engage in “a fundamentally governmental
function.” Rosborough v. Mgmt. & Training Corp., 350 F.3d 459, 461 (5th Cir. 2003) (per
curiam).
2
Case: 21-10467 Document: 00516387564 Page: 3 Date Filed: 07/08/2022
No. 21-10467
(2) promulgated by the municipal policymaker (3) was the moving force
behind the violation of a constitutional right.” Trammell v. Fruge, 868 F.3d
332, 344 (5th Cir. 2017) (internal quotation marks and citation omitted). But,
as the district court pointed out, Kennemer’s pleadings “never recite[] a
particular policy, practice, or custom of any of these entities implemented by
a policy maker that caused him to sustain injury.”
Second, as to the defendants who were supervisors of those
municipalities and municipal entities—Parker County Sherriff Larry Fowler,
Jack County Sherriff Tom Spurlock, and La Salle Director of Operations Jay
Eason—Kennemer failed to show that these individuals had any personal
involvement in the incidents he complains of. Supervisors cannot be liable
for the actions of others and must be deliberately indifferent to violations of
a prisoner’s constitutional rights. See Alton v. Tex. A&M Univ., 168 F.3d 196,
200 (5th Cir. 1999) (“Only the direct acts or omissions of government
officials, not the acts of subordinates, will give rise to individual liability under
§ 1983.”). Kennemer does not plead deliberate indifference. Cf. Brown v.
Callahan, 623 F.3d 249, 255 (5th Cir. 2010) (“Proof of deliberate indifference
normally requires a plaintiff to show a pattern of violations and that the
inadequate training or supervision is obvious and obviously likely to result in
a constitutional violation.” (internal quotation marks and citation omitted)).
Third, Kennemer claims that the officers that transported him
between the facilities he was held at—Officers Garcia, Robinson, and various
unnamed officers—did so under unsafe conditions. For episodic acts, such
as those that occurred to Kennemer, this court has adopted a subjective
deliberate indifference standard. See Hare v. City of Corinth, 74 F.3d 633, 643
(5th Cir. 1996). Again, Kennemer failed to adequately plead subjective
deliberate indifference.
3
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Fourth, because the Americans with Disabilities Act does not permit
individual liability, the district court properly dismissed those claims. Cf.
Lollar v. Baker, 196 F.3d 603, 610 (5th Cir. 1999) (in the context of the
Rehabilitation Act).
Fifth, because Kennemer is no longer at either the Parker County or
Jack County facilities, his claims for injunctive relief are moot. Cf. Herman
v. Holiday, 238 F.3d 660, 665 (5th Cir. 2001) (“[Plaintiff’s] transfer from the
ECDC to the Dixon Correctional Institute in Jackson, Louisiana, rendered
his claims for declaratory and injunctive relief moot.”).
AFFIRMED and REMANDED. 2
2
The case is remanded only because there are pending claims that were not part
of this appeal.
4