Alton v. Texas A&M University

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-40338
TRAVIS ALTON; ET AL
Plaintiffs
TRAVIS ALTON
Plaintiff-Appellant
versus
TEXAS A&M UNIVERSITY; ET AL
Defendants
THOMAS DARLING; MALON SOUTHERLAND;
ROBERT H DALTON; M T “TED” HOPGOOD,
Major General
Defendants-Appellees
Appeal from the United States District Court
for the Southern District of Texas
February 22, 1999
Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
This is an appeal from a grant of summary judgment to
officials of Texas A&M University, based on qualified immunity to
a claim for money damages for a deprivation of constitutional
rights, arising out of the hazing of a student member of its Corps
of Cadets. The Corps is a voluntary student military training
organization with over 2100 members. Its chain of command runs
from student cadet leaders to the Commandant of the Corps, a
retired U.S. Marine Corps General. Travis Alton is a former member
of the Corps of Cadets and filed this suit against certain cadets,
“student defendants”; the present Commandant of the Corps, Major
General Ted Hopgood; the former Commandant of the Corps, Major
General Thomas Darling; the Vice-President for Student Affairs, Dr.
Malon Southerland; and the faculty advisor to the Fish Drill Team,1
Captain Robert Dalton, collectively, “defendant officials”. Alton
asserts claims under 42 U.S.C. § 1983 stemming from the injuries
inflicted by the student defendants. We address Alton’s claims
against only the defendant officials in this appeal.
I
Alton alleges that during the week of January 6 through
January 13, “hell week” for the Fish Drill Team, upperclassmen
drill team cadet advisors known as hounds beat him nightly and once
taped his head like a mummy, twisting and jerking his chapped lips.
Alton’s treatment during hell week was not reported to school
authorities.
Alton alleges that about three weeks later, while the drill
team was preparing for a competition, the student defendants beat
Alton for botching a drill movement and instructed him to tell the
other members of the drill team the penalty for miscues. The
drill team later finished second at the meet and the student
1
The Fish Drill Team is a precision rifle drill unit made up
only of freshmen cadets.
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defendants punished the team for that “failure” during practice on
February 12, 1997. Alton asserts that, as part of his punishment,
he was knocked down, kicked in the ribs, and made to run until
exhaustion. These incidents were not reported. However, Alton did
confide in his brother, who told their parents. Alton’s parents
then asked Colonel Joe Hoffman, an administrator of the Corps of
Cadets, to investigate.
Meanwhile, before the parents called, former cadet Hanson, the
senior cadet advisor to the drill team, told Captain Dalton, the
team’s faculty advisor, of a rumor that upperclassmen beat an
unidentified freshman. On March 21, Captain Dalton met with Alton.
Alton, however, denied that the incidents had occurred. Alton now
explains that he did so because of pressure from former Cadet
Hanson.
After this meeting, Captain Dalton asked Colonel McClesky, the
Chief of Operations and Training and overseer of cadet misconduct
investigations, whether any investigation was underway regarding
the beating rumor. Colonel McClesky told Dalton that he thought
Colonel Ruiz, head of the Army ROTC, might know something about it,
but Ruiz would not be available until Monday, March 24, 1997.
Alton alleges that Captain Dalton tried to schedule a meeting that
day, Friday, March 21, 1997, with General Hopgood and the others in
the chain of command to discuss the situation, but Colonel Ruiz was
not available and the meeting was postponed until the 24th. Alton
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claims that he had no protection over the weekend and that the
officials did nothing to prevent further hazing.
On Saturday night, Alton faced a “hound interview,” part of a
selection process for cadet advisors to the drill team. According
to Alton, at the interview, cadets poked him in the eye, punched
him, and then told him to sit down on a stool and relax. Then,
after turning out the lights, the cadets punched him. When the
lights were turned on again, the cadets handed a knife to Alton and
told him to cut himself, which he did. The cadets then told Alton
that “this never happened.”
At 8:15 a.m. on Monday, March 24, Captain Dalton and Colonel
Ruiz discussed the rumored beating incident. Captain Dalton was
instructed to set up a meeting for that day with the student
defendants. After Captain Dalton left, Alton and his parents met
with General Hopgood and the colonels. According to General
Hopgood, it was apparent that Travis Alton recently had been hazed
and abused. The General then acted swiftly and dramatically: He
suspended all nine cadets implicated and ordered them out of the
Corps residential facilities. After hearings held by Student
Conflict Resolution Services, the nine cadets were expelled or
suspended for hazing. They were later indicted, and criminal
proceedings were pending at the time summary judgment was granted
in this case.
Despite General Hopgood’s action, on July 8, 1997, Alton filed
his complaint in the United States District Court. The district
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court granted summary judgment to the defendant officials on
qualified-immunity grounds. This ruling alone is before this
court.
II
This court reviews summary judgment rulings de novo, applying
the same standards as did the lower courts. See In re Hudson, 107
F.3d 355, 356 (5th Cir. 1997). Summary judgment is proper only "if
the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law."
Fed.R.Civ.P. 56(c). A dispute about a material fact is “genuine”
if the evidence is such that a reasonable jury could return a
verdict in favor of the nonmoving party. See Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). Where critical evidence is
so weak or tenuous on an essential fact that it could not support
a judgment in favor of the nonmovant, or where it is so
overwhelming that it mandates judgment in favor of the movant,
summary judgment is appropriate. See Armstrong v. City of Dallas,
997 F.2d 62, 67 (5th Cir. 1993).
To state a claim under § 1983 for violation of the Due Process
Clause, as Alton attempts to do in this case, plaintiffs "must show
that they have asserted a recognized 'liberty or property' interest
within the purview of the Fourteenth Amendment, and that they were
intentionally or recklessly deprived of that interest, even
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temporarily, under color of state law." Griffith v. Johnston, 899
F.2d 1427, 1435 (5th Cir. 1990) (citations omitted).
III
Alton’s § 1983 substantive due process claim is grounded upon
a right to bodily integrity. Of course, “[t]he right to be free of
state-occasioned damage to a person’s bodily integrity is protected
by the fourteenth amendment guarantee of due process.” Doe v.
Taylor, 15 F.3d 443, 450-51 (5th Cir. 1994)(en banc). Alton makes
two arguments for imposing § 1983 liability upon the defendant
officials: (1) the state-actor cadets violated Alton’s
constitutional right to bodily integrity by subjecting him to
physical abuse, and the defendant officials are liable because the
cadets’ conduct can be imputed to them; and (2) Alton’s injuries
were the result of the officials’ implementing and condoning the
Corps’ custom and policy of hazing.
Neither side disputes that the defendant officials are state
actors. The student cadet leaders of the Corps are vested with
authority over the less senior cadets and serve as a link in the
chain of command between a freshman, like Alton, and the officials
who oversee the Corps. Considering this authority and the unique
paramilitary structure of the A&M Corps of Cadets, the student
cadet leaders in this particular situation were arguably acting
under color of state law. We will assume so, although we need not
pause to decide this point, given our ready disposition of the
appeal on grounds we will explain.
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IV
Even if we assume arguendo that the student cadet leaders
acted under color of state law, and we do not decide the question,
Alton’s first basis for holding the defendant officials liable --
imputation of the cadets’ conduct -- fails. Supervisory officers,
like the defendant officials, cannot be held liable under § 1983
for the actions of subordinates, like the cadets, on any theory of
vicarious liability. See Monell v. Department of Social Services,
436 U.S. 658, 691-95 (1978); Bennett v. City of Slidell, 728 F.2d
762, 767 (5th Cir. 1984) (en banc). Only the direct acts or
omissions of government officials, not the acts of subordinates,
will give rise to individual liability under § 1983. See Coleman
v. Houston Indep. Sch. Dist., 113 F.3d 528, 534 (5th Cir. 1997).
The officials, however, may be liable when enforcement of a policy
or practice results in a deprivation of federally protected rights.
See Doe v. Dallas Indep. Sch. Dist., 153 F.3d 211, 215-16 (5th
Cir. 1998).
In Doe v. Taylor, we noted the close relationship between the
elements of municipal liability and an individual supervisor's
liability and concluded that a supervisory official may be liable
under § 1983 if that official demonstrates a deliberate
indifference to a plaintiff’s constitutionally protected rights.
See Taylor, 15 F.3d at 453. Likewise, in Scott v. Moore, we
explained in the pretrial detention context that a detainee could
succeed in holding a municipality liable for a due process
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violation if the detainee could show that a municipality employee’s
act resulted from a municipal policy or custom adopted or
maintained with objective indifference to the detainee’s
constitutional rights. Scott v. Moore, 114 F.3d 51, 54 (5th Cir.
1997).
In sum, the officials’ conduct must be measured against the
standard of deliberate indifference. Alton must establish the
following:
1. The officials learned of facts or a pattern of inappropriate
hazing behavior by a subordinate pointing plainly toward the
conclusion that the subordinate was abusing the student;
2. The officials demonstrated deliberate indifference toward the
constitutional rights of Alton by failing to take action that was
obviously necessary to prevent or stop the abuse; and
3. The officials’ failure caused a constitutional injury to Alton.
See Doe, 15 F.3d at 454.
Alton’s evidence in the summary judgment record consists of a
summary of twenty-eight incidents and the official reaction to them
during a two-year period. The district court found that few of the
listed incidents appeared to rise to the level of a constitutional
injury and that no misconduct that approached the severity of the
conduct alleged in this case was ever reported to the officials.
While this evidence supports an inference that the officials knew
of hazing incidents within the Corps, there is no evidence that in
responding to the incidents the officials acted with deliberate
indifference in preventing abuse. On the contrary, according to
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the evidence in the summary judgment record, the officials acted to
prevent hazing and to punish hazing activities.
Turning directly to the incidents concerning Alton, he told
the officials that no hazing had occurred. Despite Alton’s denial,
the defendant officials scheduled a meeting to consider the
possibility that he was being hazed. We are not pointed to
sufficient evidence that the school officials learned of facts or
a pattern of misbehavior that would lead a reasonable official to
believe that Alton’s constitutional rights were being violated.
Perhaps the officials may have been negligent, though we do not
make that suggestion, in failing to realize Alton was coerced into
lying about his abuse and failing to take immediate steps to
prevent the possibility of further abuse to Alton over the weekend,
but this cannot fairly be described as deliberately indifferent
conduct. The evidence shows that when the physical abuse of Alton
was brought to the officials’ attention, they took immediate and
firm action. It is also uncontroverted that the officials tried to
educate cadets and their parents about the Corps anti-hazing policy
and took disciplinary action in response to reports of cadet
misconduct.
The standard of deliberate indifference is high. See Doe v.
Dallas Indep. Sch. Dist., 153 F.3d 211, 218 (5th Cir. 1998).
Actions and decisions by officials that are merely inept,
erroneous, ineffective, or negligent do not amount to deliberate
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indifference and do not divest officials of qualified immunity.
See id. Alton did not demonstrate that there is a genuine issue of
fact as to whether the officials’ conduct reflected a conscious
disregard for the risk that students would suffer bodily injuries
of constitutional dimensions at the hands of student cadet leaders.
We have found no record support for the assertion that
defendants were deliberately indifferent to Alton’s rights. It
follows that plaintiffs’ second theory -- that defendant officials
implemented, condoned, approved, and conspired to cover up the
Corps’ custom and policy of hazing -- must fail, a fortiori. We
recognize that Alton attempts to prove that the official face of
not tolerating abuse of cadets by fellow cadets was false; that by
the nod and turn of the eye a pattern and custom of abuse was
perpetuated class to class and generation to generation. But
Alton’s firm belief that this is the reality of the Corps is not
the requisite proof. Nor are we insensitive to the reality that
his proof may be made the more difficult by deep loyalties of
participants internal to the very custom Alton would prove. And
there is a related second reality: “military hazing itself may
appear abusive to those unfamiliar with its objectives.” Indeed,
the ratlines of V.M.I. are described by Justice Ginsburg in United
States v. Virginia, 518 U.S. 515 (1996), as an opportunity not to
be denied females. Given the fine and murky line between the
permissible and the impermissible, we ought not repudiate an
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official who conducted a careful investigation into questioned
conduct.
V
Alton also faults the district court for relying on facts
outside of the record to support its summary judgment decision.
These non-record facts about which Alton complains are said to be
evidenced by statements by the district court extolling the
qualities of Texas A&M and considering the policy ramifications of
its decision. While extolling a distinguished university is best
left to other venues, we are not persuaded that any error here was
prejudicial.
AFFIRMED.
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