Langford v. Union County MS

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
No. 01-60716
__________________
WANDA LANGFORD, Administrator of the Estate of Michael Langford,
Plaintiff-Appellant,
versus
UNION COUNTY, MISSISSIPPI; JOE BRYANT, In His Individual and
Official Capacity as former Sheriff of Union County; TOMMY
WILHITE, Sheriff, In His Official Capacity as Successor In Office
to Joe Bryant; CARROLL THOMPSON, In His Individual and Official
Capacity; MARGARET COUSAR, In Her Official Capacity as Successor
to Carroll Thompson; JOHN DOES, #1-5,
Defendants-Appellees.
_________________________________________________________________
Appeal from the United States District Court
for the Northern District of Mississippi
(3:00-CV-152-P)
_________________________________________________________________
October 18, 2002
Before REAVLEY, BARKSDALE, and CLEMENT, Circuit Judges.
PER CURIAM:*
This appeal is from a FED. R. CIV. P. 12(b)(6) dismissal
(failure to state a claim). Primarily at issue is whether, at the
Rule 12(b)(6) stage and under the requisite “heightened pleading”
standard for the qualified immunity defense in this § 1983 action,
allegations of an officer’s failure to maintain a suicide watch for
an involuntarily committed person (awaiting transfer to a mental
*
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this opinion should not be published and is not precedent except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.
health facility) are sufficient to preclude such immunity. Joe
Bryant and Carroll Thompson (individual capacity) were granted
qualified immunity against the federal law claims; Union County,
Mississippi, was dismissed on the federal law claims (the basis for
dismissal is unclear) and was granted absolute immunity against the
state law claims. AFFIRMED IN PART; VACATED IN PART; and REMANDED.
I.
Wanda Langford alleged the following in her complaint and FED.
R. CIV. P. 7(a) reply. On 18 March 1999, Michael Langford
(Langford) was arrested by the Union County Sheriff’s Department
for being a threat (with firearm) to himself and his father. While
in the Union County jail, Langford attempted to choke himself with
a t-shirt, necessitating a trip to the hospital.
The day after Langford’s arrest, his father initiated
commitment proceedings. As part of that process, Bryant, the Union
County Sheriff, arranged for Langford to be transported to a mental
health hospital for evaluation. Pursuant to the evaluation, the
attending doctors certified that Langford should be committed to a
treatment facility.
Langford was not then taken into custody; subsequently, Bryant
made several unsuccessful attempts to do so; but Langford fled in
fright on each occasion. On 1 April, Bryant finally succeeded in
apprehending Langford. That same day, the Union County chancery
court ordered him to be involuntarily committed to the state mental
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hospital because of the substantial threat he posed to himself and
others.
As alleged: Bryant ordered Thompson, the jail administrator,
to incarcerate Langford; he was placed on suicide watch; Bryant
and/or Thompson subsequently removed Langford from suicide watch;
Langford was provided with a laundry bag; and using the rope from
that bag, he hanged himself in his cell.
The complaint against the County, Bryant, Thompson, and others
claimed, inter alia: the County failed to implement adequate
policies and training regarding the care of persons in its custody
while awaiting transfer to a mental health hospital; Bryant was
deliberately indifferent to Langford’s serious medical needs; and
Thompson violated his constitutional duties to Langford.
In their answers and subsequent motions, all defendants
claimed immunity. The magistrate judge stayed discovery except
that concerning those motions. Toward that end, Mrs. Langford
noticed the depositions of Bryant, Thompson, and the County.
During a conference to settle a dispute over the proposed
depositions, and pursuant to Rule 7(a) and Schultea v. Roth, 47
F.3d 1427 (5th Cir. 1995)(en banc), the magistrate judge ordered
Mrs. Langford to file a reply to the qualified immunity defense.
Mrs. Langford did not file a Rule 72(a) objection either to having
to file the reply or to not being then permitted to take the
noticed depositions.
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After the reply was filed, and pursuant to Rule 12(b)(6), the
district court in mid-2001, inter alia, not only granted qualified
immunity to Bryant and Thompson against the federal claims, but
also dismissed the County regarding those claims (it is unclear
whether the basis was qualified immunity) and granted it immunity
against the state law claims.
II.
Although other defendants were also sued, the only remaining
defendants are Bryant and Thompson (only in their individual
capacity against the federal claims) and the County. Mrs. Langford
maintains: Bryant and Thompson are not entitled to qualified
immunity against the federal claims; the County can never be
entitled to qualified immunity against such claims; and, for the
state law claims, the County is liable under state law pursuant to
respondeat superior.
A Rule 12(b)(6) dismissal is reviewed de novo. E.g., Lowery
v. Texas A & M Univ. System, 117 F.3d 242, 246 (5th Cir. 1997). In
ruling on such a motion, the court: does not look beyond the
pleadings; accepts all well-pleaded facts as true; and views the
facts “in the light most favorable to the plaintiff”. Cinel v.
Connick, 15 F.3d 1338, 1341 (5th Cir. 1994), cert. denied 513 U.S.
868 (1994). The motion may be granted “only if it appears that no
relief could be granted under any set of facts that could be proven
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consistent with the allegations”. Jackson v. City of Beaumont
Police Dep’t, 958 F.2d 616, 618 (5th Cir. 1992).
A.
For the federal law claims, qualified immunity was properly
granted for Bryant and Thompson. The district court erred,
however, in dismissing those claims against the County.
1.
Concerning Bryant and Thompson’s qualified immunity defense
against the federal claims, “government officials performing
discretionary functions generally are shielded from liability for
civil damages insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a
reasonable person would have known”. Harlow v. Fitzgerald, 457
U.S. 800, 818 (1982). Needless to say, qualified immunity is “an
immunity from suit rather than a mere defense to liability”.
Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) (emphasis in
original). Such immunity protects an official not only against
standing trial, but also against incurring “the burdens of ‘such
pretrial matters as discovery’”. McClendon v. City of Columbia,
2002 WL 2027329 at *4 (5th Cir. 2002) (en banc) (quoting Harlow,
457 U.S. at 817).
Toward this end, when a public official is sued under § 1983
and claims qualified immunity, the plaintiff must comply with a
“heightened pleading” standard. Schultea, 47 F.3d at 1433-34.
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This standard requires more than conclusory assertions. “It
requires claims of specific conduct and actions giving rise to a
constitutional violation.” Baker v. Putnal, 75 F.3d 190, 195 (5th
Cir. 1996). Of course, for Rule 12(b)(6) purposes, this heightened
pleading framework does not alter our acceptance of plaintiff’s
allegations as true; on the other hand, it does require specific
facts and not merely conclusions.
The well-established analysis for qualified immunity is two-
pronged: first, pursuant to existing law, plaintiff must assert a
violation of a clearly established constitutional right; second,
plaintiff must allege that defendant’s conduct was objectively
unreasonable in the light of clearly established law at the time of
the incident (because this case is at the Rule 12(b)(6) stage, the
allegations are tested). E.g., Behrens v. Pelletier, 516 U.S. 299,
309 (1996) (“At that earlier stage, it is the defendant's conduct
as alleged in the complaint that is scrutinized.”) (emphasis in
original); Siegert v. Gilley, 500 U.S. 226, 231 (1991); Hare v.
City of Corinth, 135 F.3d 320, 325 (5th Cir. 1998).
Schultea held that, in order for this heightened pleading
standard to be satisfied, a court may require the plaintiff to file
a Rule 7(a) reply addressing qualified immunity after it has been
raised by a defendant. See also Crawford-El v. Britton, 523 U.S.
574, 598 (1998)(Rule 7(a) reply appropriate in qualified immunity
cases where improper motive is an element). As the magistrate
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judge noted in ordering the reply, a district court has limited
discretion in not ordering one. Schultea, 47 F.3d at 1434.
The reply is to be specifically tailored to the qualified
immunity defense and must be pleaded with some particularity. Id.
at 1430-1431. Concomitantly, the district court may preclude
discovery until the “plaintiff has supported his claim with
sufficient precision and factual specificity to raise a genuine
issue as to the illegality of defendant’s conduct”. Id. at 1434.
The district court ruled that the claims against Bryant met
the first prong of this test by alleging Bryant’s “deliberate
indifference” to Langford’s safety. Non-prisoner detainees look to
the Fourteenth Amendment’s guarantees of procedural and substantive
due process rights with regard to “constitutional essentials” such
as safety and medical care. Jacobs v. West Feliciana Sheriff’s
Dep’t, 228 F.3d 388, 393 (5th Cir. 2000). The failure to provide
these essentials rises to the level of a constitutional violation
only when it is a product of deliberate indifference. Hare v. City
of Corinth, Mississippi (Hare II), 74 F.3d 633, 643 (5th Cir.
1996)(en banc) (In the context of suicide prevention, the law is
clearly established that a defendant must not be deliberately
indifferent to serious medical needs of detainees.).
Based on Hare II, it would appear that “deliberate
indifference” is the standard that must be satisfied by Mrs.
Langford. She maintains on appeal, however, that, because Langford
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was involuntarily committed, the officials’ conduct must be judged
against the lesser “professional judgment” standard provided in
Youngberg v. Romeo, 457 U.S. 307 (1982). We decline to address
this issue because the record does not reflect that it was raised
in district court. Nor is there any allegation in plaintiff’s
complaint and reply that addresses the officials’ professional
judgment.
A similar failure to preserve an issue in district court is
related to plaintiff making no objection to the reply requirement
or to the stay of discovery, even though many of the relevant facts
are in the possession of Bryant and Thompson. Therefore, we do not
address the appropriateness, for this case, of a dismissal prior to
limited discovery on the issue of qualified immunity.
As a backdrop to her allegations, Mrs. Langford alleged in her
reply: “prior to the ... commitment proceedings, ... Langford had
a long history of trouble as a result of his mental illness”; and
Bryant and Thompson “were well aware of this history”. Mrs.
Langford alleged that Bryant and Thompson prevented Langford from
receiving the protection from self-inflicted harm that he required.
She alleged: (1) Bryant was deliberately indifferent to Langford’s
safety by failing to instruct his employees to maintain a suicide
watch; (2) Bryant and/or Thompson “apparently” removed Langford
from a suicide watch; and (3) Bryant and Thompson issued and/[or]
carried out and/or conveyed and/or failed to contradict/prevent the
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order that resulted in the laundry bag being given to Langford. In
conjunction with this final allegation, Mrs. Langford alleged that
providing a rope (part of the bag) amounted to deliberate
indifference.
a.
Mrs. Langford alleged in her complaint that Bryant was
“deliberately indifferent to the safety of ... Langford by failing
to instruct his employees to maintain suicide watch”. She did not
allege that Thompson also failed to do so.
This allegation against Bryant was sufficient to satisfy
Schultea’s requirement that plaintiffs state allegations with
particularity. On the other hand, having done so does not
necessarily satisfy plaintiff’s burden for Rule 12(b)(6) purposes.
The alleged facts must show that the failure to instruct
constitutes deliberate indifference. Hare II, 74 F.3d at 647-648.
Mrs. Langford alleged in her reply: Bryant (and Thompson)
knew of Langford’s having “choked himself with his t-shirt and
[having] to be transported to the hospital” when Langford had been
arrested and jailed for being a threat with a firearm ; but, they
failed to properly supervise the jail employees when Langford was
next held in jail (the occasion of his suicide). Our court has
never held, however, that the failure to instruct employees to
maintain a suicide watch, alone, constitutes deliberate
indifference.
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b.
Mrs. Langford also alleged that Bryant or Thompson removed
Langford from suicide watch. In her reply, Mrs. Langford stated:
“Apparently, at some time thereafter, Joe Bryant and/or Carroll
Thompson removed [Langford] from suicide watch”. (Emphasis added.)
First, the allegation allows for the possibility that either
Thompson or Bryant might have removed Langford from suicide watch.
Mrs. Langford compounded this generality with the term
“apparently”. Also, as discussed above, Mrs. Langford alleged in
her complaint that Bryant merely “fail[ed] to instruct his
employees to maintain suicide watch”. This contradicts the
subsequent allegation that it was Bryant who removed Langford from
suicide watch. The sum of these vagaries — “and/or”, “apparently”
and the contradictory allegations about the failure to instruct —
leads to the conclusion that Mrs. Langford failed to plead with
sufficient specificity that either Bryant or Thompson was
deliberately indifferent by removing Langford from suicide watch.
c.
Mrs. Langford alleged in her reply that Langford’s “jailers”
(not named) were deliberately indifferent to his serious medical
needs “[w]hen ... Langford was given a rope with which to hang
himself”. She alleged that Thompson and Bryant “issued and/[or]
carried out and/or conveyed and/or failed to contradict[/prevent]
the order which resulted in the laundry bag being given to ...
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Langford”. In short, Mrs. Langford alleged that the officials may
have simply “allowed” the delivery of the bag and did not allege
that either Bryant or Thompson was present when it was given to
Langford. This falls far short of specifically alleging facts
necessary for deliberate indifference.
In sum, under existing law, plaintiff has failed to satisfy
the first prong to defeat qualified immunity: she has failed to
assert a constitutional violation by either Bryant or Thompson.
See, e.g., Jacobs, 228 F.3d at 397 (“The fact that [a defendant
officer] did not make the decision that [the decedent pretrial
detainee] should have a blanket would seem to militate in favor of
finding qualified immunity....”); see also DeShaney v. Winnebago
County Dep’t of Social Servs., 489 U.S. 189, 198 n.5 (1989) (“mere
negligent or inadvertent failure to provide adequate care is not
enough”); Rhyne v. Henderson County, 973 F.2d 386, 394 (5th Cir.
1992) (mere negligence not enough to establish a constitutional
violation).
The district court ruled that Mrs. Langford satisfied the
first prong of the qualified immunity test for Bryant, but not
Thompson. Accordingly, for Bryant, it reached the second prong and
found his conduct not objectively unreasonable. Because, however,
Mrs. Langford failed to assert the violation of a constitutional
right by Bryant, we need not reach his objective reasonableness vel
non.
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2.
Mrs. Langford contends that, in dismissing the federal claims
against the County, the district court ruled the County was
eligible for qualified immunity; and reasoned that its conduct was
negligence at most. Therefore, according to Mrs. Langford’s
reading of the district court’s ruling, it held the County entitled
to qualified immunity.
Of course, it is more than well-settled that local governments
do not enjoy such immunity. Leatherman v. Tarrant County Narcotics
Intelligence and Coordination Unit, 507 U.S. 163, 166 (1993).
Along this line, we question Mrs. Langford’s reading of the basis
for the district court’s ruling. In its immunity motion, the
County contended, inter alia: “The Plaintiff has failed to state
a claim upon which relief can be granted”. It is true the district
court stated the following: “Since the defendants in this instance
are Union County and Union County employees, they may be entitled
to qualified immunity under § 1983”. (Emphasis added.) However,
when the court ruled with respect to the County, it stated: “At
the most, the county may have been guilty of negligence, which is
not a basis for § 1983 liability”. Therefore, it is not clear that
the district court dismissed the federal claim against the County
on the basis of qualified immunity.
In any event, complaints against local governments need not
meet heightened pleading standards. Id. at 168. Instead, as stated
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in FED. R. CIV. P. 8(a)(2), plaintiffs need only present “a short
and plain statement of the claims showing that the pleader is
entitled to relief”. Id.
In order, through § 1983, to state a claim under federal law
against the County, plaintiff must allege: (1) a constitutional or
federal right was violated; (2) the deprivation was committed by a
person acting under color of state law; and (3) “an official policy
or custom” of the County “was a cause in fact” of the violation.
Leffall v. Dallas Indep. Sch. Dist., 28 F.3d 521, 525 (5th Cir.
1994) (quoting Monell v. Dep’t of Social Servs. of the City of New
York, 436 U.S. 658, 690-91 (1978)). Similarly, a claim is stated
in failure-to-train cases when a constitutional violation is a
highly predictable consequence of that failure. E.g., Bd. of
County Comm’rs of Bryan County, Oklahoma v. Brown, 520 U.S. 397,
409 (1997). Of course, a local government cannot be held liable
through respondeat superior for claims brought under § 1983.
Monell, 436 U.S. at 689.
With regard to an “official policy” being a “cause in fact”,
it suffices for plaintiff to allege a failure to adopt a policy “if
the need to take some action to control the agents of the local
governmental entity ‘is so obvious and the inadequacy [of existing
practice] so likely to result in the violation of constitutional
rights, that the policymak[er] ... can be reasonably said to have
been indifferent to the need’”. Burge v. Parish of St. Tammany,
13
187 F.3d 452, 471 (5th Cir. 1999) (emphasis added) (quoting City of
Canton, Ohio v. Harris, 489 U.S. 378, 390 (1989)).
Concerning a failure to train, City of Canton held:
“Consequently, while claims ... alleging that the [local
government's] failure to provide training to ... employees resulted
in the constitutional deprivation [plaintiff] suffered ... are
cognizable under § 1983, they can only yield liability against a
[local government] where [its] failure to train reflects deliberate
indifference to the constitutional rights of its inhabitants”. 489
U.S. at 392. “Only where a failure to train reflects a
‘deliberate’ or ‘conscious’ choice by a [local government] — a
‘policy’ as defined by our prior cases — can [it] be liable for
such a failure under § 1983.” Id. at 389.
In her complaint, Mrs. Langford alleged:
Michael Langford died ... as a direct result
of the failure of Union County to have
sufficient policies and training concerning
care of persons in the custody of Union
County, ... the deliberate indifference of
Union County and its employees for the safety
of ... Langford, and the negligence of Union
County and its employees.
(Emphasis added.) She also alleged: “Union County, Mississippi,
through its Sheriff and Board of Supervisors, did not have in
effect adequate policies regarding the care of persons committed to
its care while awaiting transfer to the State mental health
hospital”; and, similarly, the County “did not have in effect
adequate policies regarding training of its employees as to the
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care of persons committed to its care while awaiting [such]
transfer”.
Johnson v. Dallas Indep. Sch. Dist., 38 F.3d 198, 199 (5th
Cir. 1994)(emphasis added), cert. denied, 514 U.S. 1017 (1995),
held dismissal of a § 1983 claim against a school district was
proper because “plaintiff had not pled that [the district’s]
actions, custom, or policy caused [a student’s] death”. Therefore,
the school district could not be held liable for a constitutional
violation. Id. Johnson distinguished the requirements for stating
a claim against a local government (pleading) from the requirements
for stating one against an official in his individual capacity
(pleading facts sufficient to overcome qualified immunity). Id.
See also Oliver v. Scott, 276 F.3d 736, 741 (5th Cir. 2002)
(contrasting requirements for asserting claims against officials in
their official, versus their individual, capacity).
In sum, Mrs. Langford’s federal law claim against the County
is sufficient to withstand a Rule 12(b)(6) motion. Therefore, the
dismissal of the claim pursuant to that Rule was in error.
B.
The district court held the County was entitled to absolute
immunity from state tort claims for failure to enact sufficient
policies or training concerning the care of persons in its custody.
See MISS. CODE ANN. § 11-46-9(e) (“A governmental entity and its
employees acting within the course and scope of their employment or
15
duties shall not be liable for any claim ... arising out of an
injury caused by adopting or failing to adopt a statute, ordinance
or regulation.”).
Plaintiff did more, however, than allege Union County failed
to enact policies. She also claimed negligence on the part of its
employees: “Union County, through its employees, also acted with
gross negligence and reckless disregard ...”; and “[a]s a direct
and proximate result of said negligence ... Langford died....”
Under Mississippi law, a governmental entity is not immune if
its employees failed to use ordinary care in performing their
duties. L.W. v. McComb Separate Mun. Sch. Dist., 754 So. 2d 1136,
1141-42 (Miss. 1999) (citing MISS. CODE ANN. § 11-46-9(1)(b)).
Therefore, the Rule 12(b)(6) dismissal was in error for the
state law claims against Union County.
III.
For the foregoing reasons, the judgment is AFFIRMED for the
federal law claims against Bryant and Thompson, in their individual
capacity; VACATED for the federal and state law claims against
Union County; and REMANDED for further proceedings consistent with
this opinion.
AFFIRMED IN PART; VACATED IN PART; AND REMANDED
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